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Cornefl University Library JK240 .E92 1907 Cases on American constitution^al law / olin 3 1924 032 635 801 Cornell University Library The original of tinis book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924032635801 CASES ON AMERICAN CONSTITUTIONAL LAW EDITED BY CARL EVANS BOYD, Ph. D. SECOND EDITION CHICAGO CALLAGHAN & COMPANY 1907 J? '' ; ' r- A«-.i^\3(>d COPYRIGHT 1898 BY CALLAGHAN & COMPANY COPYRIGHT 1907 BY CALLAGHAN & COMPANY PREFACE. In making this collection of cases, it was not my purpose to at- tempt to rival the notable collection of Professor Thayer. I have had the more modest design oi bringing together within the com- pass of a single volume a sufficient number of the leading decisions of the Supreme Court of the United States on constitutionaL law to form the basis of a course in that subject. The so-called "case system" of study is applied to almost all branches of the law, but its application to constitutional law has been retarded by the obvious impracticability of referring a class to the original reports and by the want of a suitable case book of moderate size. It is to meet such requirements that this collection has been formed. A work of this kind is necessarily a compromise between the de- sirable and the attainable. The exigencies of space have compelled nje to exclude numerous instructive decisions which many persons may expect to find and which I would have been glad to print. For the further economy of space, arguments have been omitted and the notes are few. It seemed that the pages required for these features could be more profitably devoted to decisions which must otherwise be excluded. As to the text of the cases, all the decisions from December Term, 1855, (18 Howard), have been taken from the official reports. Cases decided before 18, Howard are taken from Curtis' Decisions of the Supreme Court of the United States. The cases are re- printed veriatim et literatim except that certain parts, particularly statements of facts, have been shortened, and matter not necessary Ml IV PEEFACE. to the elucidation of the constitutional question involved has been omitted. These changes have been indicated in the usual manner. The date which has been assigned to each decision is, as a rule, the year in ■which the term began at which the decision was made. This applies to all the cases decided prior to October Term, 1882, (108 U. S.), except the Dred Scott case, the Prize Cases, Hepburn V. Griswold, and the Legal Tender Oases. The relation of these decisions to contemporary affairs made their exact date important. It is to be regretted that the Eeports of the Supreme Court prior to 1882 do not indicate the day on which each decision was rendered. Professor Thayer has greatly facilitated my work by permitting me to use the sheets of his Cases as manuscript for the printer. It is also due to him to say that I was familiar with his comprehensive collection long before I began making this one. How far this fact may have influenced my selection of cases and my method of treating them cannot be determined. A general acknowledgment of indebtedness must therefore suffice. In this connection, I would also express my obligations for the many helpful suggestions which I have received from Head Professor Judson and Dr. Ernst Freund of the University of Chicago. CARL EVANS BOYD. Chicago, April 35. 1898. TABLE OF CONTENTS I. THE VALIDITY OF LEGISLATION— Marbury y. Madison 17 II. TAXATION— Hylton V. United States 26 McCulloch V. Maryland 32 Weston V. Charleston 41 License Tax Cases 45 Crandall t. Nevada 49 Veazie Bank t. Fenno 56 The Collector v. Day 64 State Tonnage Tax Cases 69 Loan Association v. Topeka 78 Springer v. United States 85 Pollock V. Farmers' Loan and Trust Co 91 South Carolina v. United States 671 III. MONEY— Craig V. Missouri 101 Briscoe v. Bank of Kentucky 108 Hepburn y, Griswold 118 Legal Tender Cases 136 Juilliard v. Greenman 157 IV. COMMERCE— Gibbons v. Ogden 172 Brown V. Maryland 192 ' License Cases 204 Passenger Cases 219 Cootey V. Wardens of the Port 235 Case of the State Freight Tax 246 Pensacola Telegraph Co. v. Western Union Telegraph Co.. 255 Gloucester Ferry Co. v. Pennsylvania. 259 Leisy v. Hardin 26& Minnesota t. Barber 281 Plumley v. Massachusetts 6S6 Lottery Case, Champion r. Ames 697 V. THE POLICE POWER— Munn v. Illinois 289 Escanaba Co. v. Chicago 29-9 VI. GENERAL (IMPLIED) POWERS— McCulloch V. Maryland 308 VII. EXECUTIVE powers- Ex parte Garland 324 In re Neagle 325 T vi TABLE OF CONTKNTS. VIII. WAR— MARTIAL LAW— Martin v. Mott 338 The Prize Cases 342 JEx parte Milligan,, 351 IX. EX POST. FAOTO LAWS AND BILLS OF ATTAINDER— Calder v. Bull 372 Cummlngs v. Missouri ^.... 381 X. IMPAIRMENT OP CONTRACTS— Fletcher v. Peck 395 Sturges V. Crowninshield 405 Dartmouth College v. Woodward 412 Ogden V. Saunders 431 Charles River Bridge Go. v. Warren Bridge Co 451 XI. CIVIL AND POLITICAL RIGHTS— Barron t. Baltimore 467 Scott V. Sandford 471 Slaughter House Cases 491 Strauder t. West Virginia 511 Civil Rights Cases 518 Hurtado v. California 534 Wnited States v. Kagama 543 United States v. Wong Kim Ark 710 XII. THE FEDERAL GOVERNMENT AND THE STATE'S— Texas v. White 552 Tarble's Case 563 Ex parte Siebold 571 XIII. INTERNATIONAL RELATIONS.— INDIAN AFFAIRS- American Insurance Co. v. Canter 583 Cherokee Nation v. Georgia 584 Worcester v. Georgia 590 Fong Yue Ting v. United States 595 XIV. JURISDICTION OF- THE FEDERAL COURTS— Chisholm t. Georgia 603 Martin v. Hunter's Lessee 616 Cohens v. Virginia 627 United States v. Texas 637 South Dakota v. North Carolina 736 XV. POLITICAL QUESTIONS— Luther v. Borden 647 Mississippi v. Andrew Johnson 652 XVI. ENFORCEMENT OF EXECUTIVE POWER BY JUDICIAL PROCESS— In re Debs 659 XVII. THE POWER OF CONGRESS OVER THE TERRITORIES— De Lima v. Bidwell 74g Downes v. Bidwell 767 Hawaii v. Mankichi 792 Dorr V. United States 802 TABLE OF CASES. AWeman v. Booth 565, 568 Alabama v. Georgia 640 Aldnutt V. Inglis 292 Alexander v. Railroad 71, 75 Allen V. Inhabitants of Jay. ... 81 Almy V. California 253 American Ins. Co. v. Canter. . 547, 583- Amy Warwick, The.. . , , . 342 Apsden v. Austin..-. 151 Assignees of Topham v. Chstp- man 446 Austria v. Day 168 Baker v. Wheaton Ballantine v. Golding Bank V. Supervisors of Columbia v. Okely of Commerce v. New York City of Kentucky v. Wistar of U. S. V. Planters' Bank. Banks v. Mayor , Bank Tax Case Barbier v. Connolly Barrington v. Potter. . .... ..... Barren v. BaItinj,ore Bartemeyer v. Iowa Bayard v. Singleton, Beaty v. Lessee of Knowles. . . Beer Co. v. Massachusetts Benedict v. Vanderbilt Bolt V. Stennett Bonham's Case IRowman v. C. & N. W. Rail- way Co 273, 276, Bowman v. Middleton Boyle V. Reading R. R. Co Brilliante, The Briscoe v. Bank of Kentucky. 108, 155, 189 Branson v. Rodes 120, 122 Brown v. Houston 271, 278 V. Levee Commissioners... 542 v. Piger 2S3 V. Maryland ... .54, 76, 152, 206, 208, 210, 220, 270, 272, 273, 279 V. United States 317 Burrows v. Jamineau 447 Butler, V, Horwitz. . . 120 446 Calder v. Bull 372 445 Camden v.. Allen, 84; 166 Chae Ohan Ping v. United 537 States 596, 601 Charles River Bridge v. War- 247 ren Bridge 451 117 Cherokee Nation v, Ge,orgia 117 547, 549, 584, 638, 639 166 Chirac v. Chirac 217 247 Chisholm v. Georgia. 603 307 City of New York v. Miln 151 210, 220, 224, 495 467 Civil Rights Cases 518 278 Clarke v. P. W. & B, R. R. Co. 249 24 Coffin V. Landis 151 459 Cohens v. Virginia 1S9, 239, 278 356, 595, 627, 642 75 Collector v. Day 64 292 Commonwealth v. Alger 494 539 V. Caton 24 V. Smith . , . , 137 279 Cook V. Pennsylvania. 277 24 Cooley v. Board of Wardens 248 52, 75, 235, 252, 271, 307, 572 342 Corfield v. Coryell 505 vii TABLE OF CASES. Craig V. Missouri 101, 110, 116, 164, 169 Crandall v. Nevada 49, 252, 253, 507 Crenshaw, The 342 Cumberland Valley B. R. Co.'s Appeal 248 Cummings t. Missouri 381 Daniel Ball, The 302 Dartmouth College v. Wood- ward 412 Davidson v. New Orleans 540 DoUbins-.v. Brown 152 V. Comihissioners of Erie County 64, 65, 67 Dooley v. Smith 160 Dred Scott v. Sandford 471, 503 Dunn V. Sayles 151 Eakln V. Raub 24 Edye v. Robertson 600 Eilenbaker v. District Court of Plymouth County 278 Escanaba Co. v. Chicago.. 277, 299 Ex parte Bollmah..^ 354 Crow Dog 549 Garland 324, 394 Milligan 351 Siebold 331, 571, 661 Virginia , 522, 525 Watkins 354 Yarbrough 600 raw V. Marsteller 151 Fellows V. Blacksmith et al. . . 551 Fisher v. Blight 143 Fletcher v. Peck. .138, 386, 389, 395 V. Rhode Island 204 Florida v. Georgia 640 Fong Yue Ting v. U. S 595 Foster v. Davenport 72 V. Kansas 278 V. Neilson 600, 638, 658 Fowler v. Llndsey 645 Fox V. Ohio 575 Gaines v. Buford 388 Garcia v. Lee 638, 639 Gelston v. Hoyt 657 Georgia v. Stanton 658 Gibbons v. Ogden...72, 93, 153, 172, 201, 213, 216, 217, 220, 222, 226, 232, 252, 255, 265, 267, 270, 273, 274, 280, 495, 665. Gilman v. Philadelphia. ...252, 303, 664, 665 Gloucester Ferry Co. v. Penn- sylvania 269 Groves v. Slaughter 227 Hanson v. Vernon 81, 82, 84 Hans V. Louisiana 643, 644 Harrison v. Sterry 443 Hays V. Pacific Mail Steamship Co 263, 265 Henderson v. Mayor of New York.... 265. 270, 277, 282, 304 Hepburn v. Griswold . . 118, 144, 155, 160, 166 & Dundas v. Ellzey 561 Hiawatha, The 342 Holmes v. Jennison 220, 356 v. Walton 24 Houston V. Moore 217, 220, 239 Hoiwell V. Maryland 71 Hunt V. Knickerbocker 107 Hunter v. Potts 445 Hurtado v. California 534 Hyde v. Continental Trust Co. 91 Hylton V. United States 26, 61, 87, 89, 90, 93 Indiana v. Kentucky 640 In re Adam 602 Debe 659 Neagle 325 Rapier 600 Jackson v. Lamphire 459 Jenkins V. Andover 83 Jones V. Robbing 535 V. United States 668 TABLE OF CASES. Iz 3'ullliard v. Greeminaii....l57, 323, €00 Kalloch T. Superior Court £35 Kansas Indians, The 551 Kellogg V. Union Co ,. 266 Kendall v. Stockton & Stokes. 655 Kennard v. Louisiana.. 540 Kentucky t. Dennison 57:6 Kidd V. Pearson 278 Kimmish v. BaU ,. 278 Knox V. Lee 136, 156, 323, 597 Lane County y. Oregoa 65, 120, 555, 661 Lau Ow Bew v. United States. 602 Lee Joe v. United States 595 Legal Tender Cases. ..136, 160, 166, 169, 170, 597 Leisy v. Hardin 269, 807 License Cases 204, 275, 276, 279, 307 License Tax Cases 45, 307, 495 Loan ABS0ciation v. Topeka78, 542 XiOgan V. United States 600 Lowell V. Boston 81 JLuther V. Borden 369, 559, 647 Marbury r. Madison.. 17, 654, 655 Martin v. Hunter's Lessee. 138, 239, 616 V. Mott 338, 650 Maryland v. Railroad Co 160 IMatter oif Keeler 569 Mayor of New York 84 Severy 669 Turner 500 McConnell v. Hampden 369 McCulloch V. Maryland 32, 42, 45. 54, 64, 68, 76, 84, 92, 126, 138, 143, 146, 161, 163, 166, 171, 228, 263, 308, 496, 600, 644, 661. M'Millan v. M'Neil 432 McReynolds v. Smallhouse 266 Minnesota v. Barber 281, 307 Mississippi t. Johnson 652 Missouri v. Iowa 640 V. Kentucky 640 V. Lewis 541 Mobile V, Kimball.... 261, 271, 277, 304 V. Yuille 293 Moore v. Illinois 57S Morgao Steamship Co. v. La. Board of Health. 278 Morgaai v. Parham.. 263, 265 Mugier V. Kansas 278, 282, 307 Munn V. Illinois 289, 540 Murphy v. Ramsey 547 Murray's Lessee v. Hoboken Land & Imp. Co...... 537 Nashville, &c. Railway Co. v. Alabama 278 Nathan v. Louisiana 71, 76 National Bank v. United States 1G7 Nebraska v. Iowa 640 New Jersey v. New York 640 New Jersey Navigation Co. v. Merchants' Bank 293 New York Indians, The 551 Nishlmura Ekiu t. United States 596, 600 Norris v. Boston 219, 230, 231 North Carolina v. Temple 643 Northern Libertira v. St. John's Church 84 Ogden V, Saunders 431 Olcott V. Supervisors 83 Osborn v. United States Bank 166 Pacific Ins. Co. v. Soule 61, 89, 90 Packet Co. v. Catlettsbufg 269 V. Keokuk 268 V. St Louis 269 Palmer v. Commissioners of Cuyahoga Co 306 T»arker v. Davis 136 Parsons v. United States 337 Passenger Cases, The... 51, 52, 54, 72, 219, 250, 252 Patterson v. Kentucky 278, 286 Patton V. Nioholson 107 TABLE OF CASES. Paul V. Virginia 261, 506 Pearson t. International Dis- tillery 279 Peirce v. New Hampshire. .204, 276 Pennsylvania v. Standard Oil Co 263 Pensacola Telegraph Co. v. Western Union Tel. Co 255 People T. Compagnie G6n£rale Transatlantique 282 y. Salem 83 Permoll v. First Municipality. 305 Perry v. Torrence 72 Phillips V. Detroit 283 V. Hunter 446 Poindexter v. Greenhow 98 Pollard's Lessee v. Hagan.... 305 Pollock V. Farmers' Loan & Trust Co. 91 Pound V. Turck 303 Pray v. Northern Liberties. . . 84 Prigg V. Pennsylvania 239, 517 Prize Cases, The 342 Providence Bank v. Billings & Pittman 459 Provident Bank v. Massachu- setts 247 Railroad Co. v. Husen 270, 277 V. Johnson 160 V. Pennsylvania 263 Reading Railroad Co. v. Penn- sylvania 246, 265 Rhode Island v. Massachusetts 640, 645 Robhins v. Shelby Taxing Dis- trict 270, 271, 277, 288 Robdnson v. Memphis & Char- leston R. R. Co... 518, 619, 533 Rovran v. The State 535 Rutgers v. Waddington 24 Santissima Trinidad, The...,. 346 Satterlee v. Matthewson 454 St. Louis V. The Ferry Co. 263 Scholey v. Rew 89, 90 Searlght v. Calbralth 170 Sennot v. Davenport 72 SharplesB v. Mayor of Phila- delphia 81, 82, 84 Slaughter-House Cases 307, 491, 513, 516 Smith v. Alabama 278 V. Shaw 369 V. Turner 219, 231 Society for Saving v. Coite.76, 247 Soon Hing v. Crowley 282 Spraigue v. Thompson 98 Springer v. United States 85 Springfield Bank v. Merrick.. 107 State Freight Tax Case... 246, 277, 286 State Tax on Railway Gross Receipts 298 State Tonnage Tax Cases 69 Sitate V. Charleston 75 V. Starling 536 V. Wapello Co 82 Bteamghlp Co. v. Port Ward- ens 74, 265 Stourbridge Canal v. Wheeling 457 Strader v. Graham 483, 484, 486 Strauder v. West Virginia 511 Stuart V. Laird 239 Sturges V. Crowninshield..l64, 217, 220, 243, 405, 432, 434, 439, 444 Tarble's Case 563 Tennessee V. Davis 331, 517 Texas V. White 156, 552 Thames Bank v. Lovell 266 Thorpe v. Rutland & Burling ton R. R. Co 290, 495 Thurlow v. Massachusetts.... 204 Towboat Co. v. Bordelon 75 Transportation Co. v. Parkers- burg 269, 278 Trevett v. Weeden 24 Turner v. Maryland 274 United States v. Arredondo... 459, 638, 633 V.Bell Telephone Co 664 TABLE OF CASES. United States t. Booth.. ..565, 568 v. Crulkshank 522, 576 V. Daniel 365 V. DeWitt 495 V. Fisher 162 T. Harris 527 T. HolUday 657 V. Hughes 335 T. Kagama 543 V. Marigold ....... 142, 148, 575 V. Nichols 518, 519 V. North Carolina 642 V. Reese 517 V. Rogers 547 V. Ryan 518, 519, 533 V. San Jacinto Tin Co. 334, 664 V. Singleton 518, 519 V. Stanley 518, 519 V. Texas 637 Bank v. Bank of Georgia. 166 Vanderbllt v. Adams 266 Vanderheyden v. Young 841 Veazie Bank v. Fenno....56, 68, 89, 147, 166, 167 Vlcksburg v. Tobin 269 Virginia vr Rives 522 v. West Virginia 640 Wabash, St. Louis, &c., Rail- way V. Illinois.... 271, 277 Walker v. Savinet 540 Walling V. Michigan.. 270, 278, 285 Ward V. Maryland 505 V. Smith 166 Warren v. Charlestown 98 Watson V. Bourne 446 V. Mercer 455 Webber v. Virginia 278 Wells V. Nickles 334 Welton V. Missouri... 261, 278, 304 Westervelt v. Gregg 636 Weston V. Charleston... 41, 54, 64, 76, 166, 356 Whiting V. Fond du Lac... 81, 82, 83, 84 Whitney v. Robertson 601 Williams v. Suffolk Ins. Co 658 Wdllson V. Blackbird Creek MarsTi Co 216, 217, 220, 239, MZ Winney v. Whltesldes 488 Wisconsin v. Pelican Ins. Co. 640, 643 Wong Quan v. United States.. 595 Woodruf V. Parham 253 Worcester v. Georgia. .549, 551, 590 Workman v. Mifflin 162 CJ^SE^S AMERICAN CONSTITUTIONAL LAW. THE CONSTITUTION OF THE UNITED STATES. ^ "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, pro- vide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. SECTION I. " All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Eepresentatives. SECTION II. ' The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requi- site for electors of the most numerous branch of the State legis- lature. * No person shall be a Representative who shall not have at- tained the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. ^ Eepresentatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons. The actual enumeration 1 3 THE CONSTITUTION OF THE UNITED STATES. shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten. North Carolina five. South Caro- lina five, and Georgia three. ** When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies. ^ The House of Representatives shall choose their Speaker and other officers, and shall have the sole power of impeachment. SECTION III. ' The Senate of the United States shall be composed of two Senators from each State, chosen by the legislature thereof, for six years; and each Senator shall have one vote. * Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year; of the second class, at the expiration of the fourth year, and of the third class, a.t the expiration of the sixth year, so that one-third may be chosen every second year; and if vacancies happen by resignation or otherwise during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies. ^° No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United StateSj, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen. ^^ The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. ^^ The Senate shall choose their other officers, and also a Presi- dent pro tempore in the absence of the Vice-President, or when he shall exercise the office of President of the United States. ^^ The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirma- tion. When the President of the United States is tried, the Chief Justice shall preside: and no person shall be convicted without the concurrence of two-thirds of the members present. ^* Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy THE CONSTITUTION OF THE UNITED STATES. 3 any office of honor, trust, or profit under the United States; but the party convicted shall, nevertheless, be liable and subject to indictment, trial, judgment, and punishment according to law. SECTION IV. ^^ The times, places, and manner of holding elections for Sen- ators and Kepresentatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. ^° The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. SECTION V. ^' Each house shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide. ^* Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member. ^' Each house shall keep a journal of its proceedings, and from, time to time publish the same, excepting such parts as may in their judgment require secrecy, and the yea^ and nays of the mem- bers of either house on any question shall, at the desire of one- fifth of those present, be entered on the journal. ^^ Neither house, during the session of Congress, shall, with- out the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting. SECTION VI. "^ The Senators and Representatives shall receive a compensa- tion for their services, to be ascertained by law and paid out of the Treasury of the United States. They shall, in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same; and for any speech or debate in either house they shall not be questioned in any other place. ^^ No Senator or Eepresentative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emolu- ments whereof shall have been increased during such time; and 4 THE CONSTITUTION OF THE UNITED STATES. no person holding any office under the United States shall be a member of either house during his continuance in office. SECTION VII. ="= All bills for raising revenue shall originate in the House of Representatives^ but the Senate may propose or concur with amendments as on other bills. '■* Every bill which shall have passed the House of Eepresenta- tives and the Senate shall, before it becomes a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider it. If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, hy which it shall likewise be reconsidered, and if approved by two-thirds of that house it shall become a law. But in all such cases the votes of both houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. ^^ Every order, resolution, or vote to which the concurrence of the Senate and House of Eepresentatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Eepresentatives, accord- ing to the rules and limitations prescribed in the case of a bill. SECTION VIII. "^ The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States; ^' To borrow money on the credit of the United States; 28 To regulate commerce with foreign nations and among the several States, and with the Indian tribes; " To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; ^^To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; ^* To provide for the punishment of counterfeiting the securi- ties and current coin of the United States; THE CONSTITUTION OP THE UNITED STATES. 5 '* To establish post-ofl&ces and post-roads; '' To promote the progress of science and useful arts by secur- ing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; ** To constitute tribunals inferior to the Supreme Court; '° To define and punish piracies and felonies committed on the high seas and offenses against the law of nations; *® To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; °' To raise and support armies, but no appropriation of money to that use shall be for a longer time than two years; '^ To provide and maintain a navy; '* To make rules for the government and regulation of the land and naval forces; *" To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; *^ To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respect- ively the appointment of the officers, and the authority of train- ing the militia according to the discipline prescribed by Con- gress; *^ To exercise exclusive legislation in all cases whatsoever over such district (not exceeding ten miles square) as may, by cession of particular Stages and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the consent of the legis- lature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful build- ings; and *^ To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. SECTION IX. ** The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be pro- hibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. *' The privilege of the writ of habeas corpus shall not be sus- pended, unless when in cases of rebellion or invasion the public safety may require it. *^ No bill of attainder or ex post facto law shall be passed. *''N'o capitation or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. 6 THE CONSTITUTION OF THE UNITED STATES. *« No tax or duty shall be laid on articles exported from any- State. *' ISTo preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another. =" No money shall be drawn from the Treasury but in conse- quence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. =^ No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under' them shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State. SECTION X. "^ No State shall enter into any treaty, alliance, or confedera- tion; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. °^ No State shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be abso- lutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. '* 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. AKTICLE II. SECTION I. "^ The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and together with the Vice-President, chosen for the same term, be elected as follows: °* Each State shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of Senators and Eepresentatives to which the State may be entitled in the Congress; but no Senator or Eepresentative, or THE CONSTITUTION OF THE UNITED STATES. 7 person holding an of&ce of trust or profit under the United States^ shall be appointed an elector. '"'' [The electors shall meet in their respective States and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and trans- mit sealed to the seat of government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of electors ap- pointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Repre- sentatives shall immediately choose by ballot one of them for President; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President.]^ °^ The Congress may determine the time of choosing the elect- ors and the day on which they shall give their votes, which day shall be the same throughout the United States. ^' No person except a natural-bom citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. *" In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice-Presi- dent, and the Congress may by law provide for the case of re- moval, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly until the disability be re- moved or a President shall be elected. °^ The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished 1 This clause of tte Constitution has been superseded by the Twelfth Amendment. 8 THE CONSTITUTION OF THE UNITED STATES, during the period for which he may have been elected, and he shall not receive within that period any other emolument from the United States or any of them. «^ Before he enter on the execution of his office he shall take the following oath or affirmation: "I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability preserve, protect, and defend the Constitution of the United States." SECTION II. , *^ The President shall be Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any sxibject relating to the duties of their respective offices, and he shall have power to grant re- prieves and pardons for offenses against the United States, except in cases of impeachment. '*He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments. "^ The President shall have power to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. SECTION III. *« He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occasions, convene both houses, or either of them, and in case of disagreement between them with respect to the time of adjournment, he may adjourn them to such time as he shall think proper; he shall receive ambassadors and other public ministers; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. SECTION IV. «^The President, Vice-President, and all civil officers of the United States shall be removed from office on impeachment for THE CONSTITUTION OF THE UNITED STATES. 9 and conviction of treason, bribery, or other high crimes and mis- demeanors. AETICLE III. SECTION I. *' The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their con- tinuance in office, SECTION II. *" The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases afEecting ambassiadors, other public ministers, and con- suls; to all cases of admiralty and maritime jurisdiction; to con- troversies to which the United States shall be a party; to contro- versies between two or more States; between a State and citizens^ of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects. "In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Su- preme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate juris- diction, both as to law and fact, with such exceptions and under such regulations as the Congress shall make. '^ The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. SECTION III. '* Treason against the United States shall consist only in levy- ing war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. ■" The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. 10 THE CONSTITUTION OF THE UNITED STATES. AETICLB IV. SECTION I. '* Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved^ and the effect thereof. SECTION II. '° The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States. '" A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. '''' N"o person held to service or labor in one Statte, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. SECTION III. ''^ New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State; nor any State be formed by the junction of two or more States or parts of States, without the consent of the legisla/tures of the States concerned as well as of the Congress. '" The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States or of any particular State. SECTION IV. 8" The United States shall guarantee to every State m this Union a republican form of government, and shall protect each of them against invasion, and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence. AETICLE V. «i The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or. THE CONSTITUTION OF THE UNITED STATES. 11 on the applicaition of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, v^hich in either case shall he valid to all intents and purposes as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress, provided that no amendments which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI. ^^ All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Constitution as under the confederation. *^ This Constitution, and the laws of the United States wTiich 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 Eepresentatives before mentioned, and 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 Con- stitution; but no religious test shall ever be required as a qualifi- cation to any office or public trust under the United States. AETICLE VII. *° The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same. ** Done in convention by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the independence of the United States of America the twelfth. In witness whereof, we have hereunto subscribed our names. George Washington, President, and Deputy from Virginia. New Hampshire — John Langdon, Nicholas Gilman. Massachusetts — Nathaniel Gorham, Eufus King. Connecticut — ^William Samuel Johnson, Roger Sherman. New York — Alexander Hamilton. New Jersey — William Livingston, David Brearly, William Pat- terson, Jonathan Dayton. 13 THE CONSTITUTION OF THE UNITED STATES. Pennsylvania — Benjamin Franklin, Thomas MifBin, Kobert Mor- ris, George Clymer, Thomas Pitzsimons, Jared Ingersoll, James Wilson, Crouverneur Morris. Delaware — George Eead, Gunning Bedford, Jr., John Dickinson, Eichard Bassett, Jacob Broom. Maryland — James McHenry, Daniel of St. Thomas Jenifer, Daniel Carroll. Virginia — John Blair, James Madison, Jr. North Carolina— William Blount, Richard Dobbs Spaight, Hugh Williamson. South Carolina — John Eutledge, Charles Cotesworth Pinckney, Charles Pinckney, Pierce Butler. Georgia — William Few, Abraham Baldwin. Attest: William Jackson, Secretary. AMENDMENTS. AETICLE I. *' Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. AETICLE II. *' A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed. AETICLE III. ^° No soldier shall, in time of peace, be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law. AETICLE IV. "*' The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon prob- able cause, supported by oath or affirmation, and particularly de- THE CONSTITUTION OF THE UNITED STATES. 13 scribing the place to be searched, and the person or things to be seized. ARTICLE V. *^ No person shall be held to answer for a capital or other- wise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be de- prived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation. AETICLE VI. "^ In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be con- fronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assist- ance of counsel for his defense. AETICLE VIL *' In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law. ARTICLE VIII. '* Excessive bail shall not be required, nor excessive fines im- posed, nor cruel and unusual punishments inflicted. AETICLE IX. •' The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people. ARTICLE X. •• The powers not delegated to the United States by the Con- stitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. 14 THE CONSTITUTION OF THE3 UNITED STATES. AETICLE XI. "'' The judicial power of tlie United States shall not be con- strued to extend to any suit in law or equity, commenced or prose- cuted against one of the United States hy citizens of another State, or by citizens or subjects of any foreign State. AETICLE XII. ^^ The electors shall meet in their respective States and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same State with them- selves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice- President, and they shall make distinct lists of all persons voted for as President and of all persons voted for as Vice-President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Eepresentatives, open all the certificates and the votes shall then \)e counted. The person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons hav- ing the highest numbers not exceeding three on the list of those voted for as President, the House of Eepresentatives shall choose immediately, by ballot, the President. But in choosing the Presi- dent the votes shall be taken by States, the representation from each State having one vote; a quorum for this purpose shall con- sist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Eepresentatives shall not choose a President when- ever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. "^ The person having the greatest number of votes as Vice-Presi- dent shall be the Vice-President, if such number be a majority of the whole number of electors appointed; and if no person have a m.ajority, then from the two highest numbers on the list the Senate shall choose the Vice-President; a quorum for the pur- pose shall consist of two-thirds of the whole number of Senators and a majority of the whole number shall be necessary to a choice' But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States THE CONSTITUTION OF THE UNITED STATES. 15 ARTICLE XIII. ^°° Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place sub- ject to their jurisdiction. ^°^ Section 2. Congress shall have power to enforce this article by appropriate legislation. ARTICLE XIV. ^"^ Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. ^"^ Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. ^°* Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort .to the enemies thereof. But Congress may, by a vote of two-thirds of each house, remove such disability. "= Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation inciirred in aid of insurrection or rebellion against the United 16 THE CONSTITUTION OF THE UNITED STATES. States, or any claim for the loss or emancipation of any slave; but all such debts, obligations, and claims shall be held illegal and void. "° Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. ARTICLE XV. ^"^ Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servi- tude. '"' Section 2. The Congress shall have power to enforce this article by appropriate legislation. I. THE VALIDITY OF LEGISLATION. MAEBURY V. MADISON. 1 Cranch., 137. Decided 1803. At the last term, namely, December term, 1801, William Mar- bury, Dennis Ramsey, Robert Townsend Hooe, and William Har- per, by their counsel, Charles Lee, Esq., late Attorney-general of the United States, severally moved the court for a rule to James Madison, Secretary of State of the United States, to show cause why a mandamus should not issue commanding him to cause to be delivered to them respectively ^ their several commissions as justices of the peace in the District of Columbia. This motion was supported by affidavits of the following facts: that notice of this motion had been given to Mr. Madisonj that Mr. Adams, the late President of the United States, nominated the applicant to the senate for their advice and consent to be appointed Justices of the peace of the District of Columbia; that the senate advised and consented to the appointments; that commissions in due form were signed by the said president appointing them justices, etc., and that the seal of the United States was in due form affixed to the said commissions by the secretary of state; that the applicants have requested Mr. Madison to deliver them their said commis- sions, who has not complied with that request; and that their said commissions are withheld from them; that the applicants have made application to Mr. Madison, as secretary of state of the United States, at his office, for information whether the commis- sions were signed and sealed as aforesaid; that explicit and satis- factory information has not been given in answer to that inquiry, either by the secretary of state or any officer in the department of state; that application has been made to the secretary of the senate for a certificate of the nomination of the applicants, and of the advice and consent of the senate, who has declined giving such a certificate; whereupon a rule was laid to show cause on the fourth day of this term. This rule having been duly served, Mr. Lee read the affidavit of Dennis Ramsey, and the printed journals 2 17 18 CASES ON CONSTITUTIONAL LAW. of the senate of 31st January, 1803, respecting the refusal of the senate to suffer their secretary to give the information requested. He then called Jacob Wagner and Daniel Brent, who had been summoned to attend the court, and who had, as it is understood, declined giving a voluntary affidavit. They objected to being sworn, alleging that they were clerks in the department of state, and not bound to disclose any facts relating to the business or transactions in the office. The court ordered the witnesses to be sworn, and their answers taken in writing, but informed them that when the questions were asked they might state their objections to answering each par- ticular question, if they had any. Mr. Lincoln, attorney-general, having been summoned, and now called, objected to answering. He requested that the questions might be put in writing, and that he might afterwards have time to determine whether he would answer. On the one hand he respected the jurisdiction of this court, and on the other he felt himself bound to maintain the rights of the executive. He was acting as secretary of state at the time wlien the transaction hap- pened. He was of opinion, and his opinion was supported by that of others whom he highly respected, that he was not bound, and ought not to answer, as to any facts which came officially to his knowledge while acting as secretary of state. The questions being written, were then read and handed to him. He repeated the ideas he had before suggested, and said his objec- tions were of two kinds. 1st. He did not think himself bound to disclose his official transactions while acting as Secretary of State; and, 2d. He ought not to be compelled to answer anything which might tend to crimtaate himself. Mr. Lincoln thought it was going a great way to say that every Secretary of State should at all times be liable to be called upon to appear as a witness in a court of justice, and testify to facts which came to his knowledge officially. He felt himself delicately situated between his duty to this court and the duty he conceived he owed to an executive department; and hoped the court would give him time to consider the subject. The court said that if Mr. Lincoln wished time to consider what answers he should make, they would give him time; but they had no doubt he ought to answer. There was nothing confidential required to be disclosed. If there had been he was not obliged to answer it; and if he thought that anything was communicated to him in confidence he was not bound to disclose it; nor was MARBUKY V. MADISON. 19 he obliged to state anything which would criminate himself; but that the fact whether such commissions had been in the office or not, coidd not be a confidential fact; it is a fact which all the world have a right to know. If he thought any of the questions improper, he might state his objections. Mr. Lincoln then prayed time till the next day to consider of his answers under this opinion of the court. The court granted it, and postponed further consideration of the cause till the next- day. At the opening of the court on the next morning, Mr. Lincoln said he had no objection to answering the questions proposed, excepting the last, which he did not think himself obliged to answer fully. The question was, what had been done with the commissions? He had no hesitation in saying that he did not know that they ever came to the possession of Mr. Madison, nor did he know that they were in the office when Mr. Madison took possession of it. He prayed the opinion of the court whether he was obliged to disqlose what had been done with the commissions. The court were of opinion that he was not bound to say what had become of them; if they never came to the possession of Mr. Madison it was immaterial to the present cause what had been done with them by others. Afterwards, on the 24th February, the following opiuion of the court was delivered by the Chief Justice. At the last term on the affidavits then read and filed with the clerk, a rule was granted in this case, requiring the Secretary of State to show cause why a mandamus should not issue, directing him to deliver to William Marbury his commission as a justice of the peace for the county of Washington, in the District of Columbia. No cause has been shown, and the present motion is for a mandamus. The peculiar delicacy in this case, the novelty of some of its circumstances, and the real difficulty attending the points which occur in it, require a complete exposition of the prin- ciples on which the opinion to be given by the court is founded. . . The first object of inquiry is, 1st. Has the applicant a right to the commission he demands? . . . [The court holds that, having been duly appointed, he has a right to his commission.] This brings us to the second inquiry, which is, 2dly. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? . , . [The court finds that they do.] It remains to be inquired whether, 20 CASES ON CONSTITUTIONAL LAW. 3dly. He is entitled to the remedy for wMcli he applies. This depends on, 1st. The nature of the writ applied for; and, Sdly. The power of this court. 1st. The nature of the writ. . . . This, then, is a plain case for a mandamus, either to deliver the commission, or a copy of it from the record; and it only remains to be inquired. Whether it can issue from this court. The act to establish the judicial courts of the United States authorizes the supreme court "to issue writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States." . . . The constitution vests the whole judicial power of the United States in one supreme court, and such inferior courts as Congress shall, from time to time, ordain and establish. . . . In the distribution of this power it is declared that "the supreme court shall have original jurisdiction in all cases affect- ing ambassadors, other public ministers and consuls, and those in which a State shall be a party. In all other cases, the supreme court shall have appellate jurisdiction." . . . If it had been intended to leave it in the discretion of the legislature to appor- tion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judi- cial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely with- out meaning, if such is to be the construction. ... To enable this court, then, to issue a mandamus, it must be shown to be an exercise of appellate jurisdiction, or to be necessary to enable them to exercise appellate jurisdiction. . . . It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction. Neither is it necessary in such a case as this, to enable the court to exercise its appellate jurisdiction. The authority, therefore, given to the supreme court, by the act establishing the judicial courts of the United States, to issue writs of mandamus to public officers, appears not to be warranted by the constitution; and it becomes necessary to inquire virhether a jurisdiction so conferred can be exercised. MARBURY V. MADISON. 21 The question whether an act repugnant to the constitution can hecome the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain prin- ciples, supposed to have been long and well established, to decide it. That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certdn limits not to be transcended by those departments. The government of the United States is of the latter descrip- tion. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the con- stitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be con- tested, that the constitution controls any legislative aot repugnant to it; or, that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions con- template them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such govern- 22 CASES ON CONSTITUTIONAL LAW. ment must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the legislature, repugnant to the constitution, is Toid, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. It is emphatically the province and duty of the judicial depart- ment to say what the law is. Those who apply the rule to particu- lar eases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the con- stitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, not- withstanding the express prohibition, is in reality efEectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the great- MARBURY V. MADISON. »a est improvement on political institutions, a written constitution, would of itself be sufficient, in America, where written constitu- tions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favor of its re- jection. The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained. In some cases, then, the constitution must be looked into by the judges. And if they can open it at all, what part of it are they forbidden to read or to obey? There are many other parts of the constitution which serve tp illustrate this subject. It is declared that "no tax or duty shall be laid on articles ex- ported from any State." Suppose a duty on the expo|H; of cotton, of tobacco, or of flour; and a suit instituted to recover it. Ought judgment to be rendered in such a case? ought the judges to close their eyes on the constitution, and only see the law? The constitution .declares "that no Mil of attainder or ex post facto law shall be passed." If, however, such a biU should be passed, and a person should be prosecuted under it, must the court condemn tp death those victims whom the constitution endeavors to preserve? "No person," says the constitution, "shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." Here the language of the constitution is addressed especially to the courts. It prescribes, directly for them, a rule of evidence not to be departed from. M the legislature should change that rule, and declare one witness, or a confession out of court, sufficient for conviction, must the constitutional principle yield to the legisla- tive act? From these, and many other selections which might be made, it is apparent that the framers of the constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature. ^ Why otherwise does it direct the judges to take an oath to sup- port it? This oath certainly applies in an especial manner to their 34 CASES ON CONSTITUTIONAL LAW. conduct in their official character. How immoral to impose it on them, if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! The oath of office, too, imposed by the legislature, is completely demonstrative of the legislative opinion on this subject. It is in these words: "1 do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge all the duties incumbent on me as , according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States." Why does a judge swear to discharge his duties agreeably to the constitution of the United States, if that constitution forms no rule for his government — ^if it is closed upon him, and cannot be inspected by him? If such be the real state of things, this is worse than solemn mockery. To prescribe, or to take this oath, becomes equally a crime. It is also not entirely unworthy of observation^ that in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not the laws of the United States generally, but those only which shall be made in pursuance of the constitu- tion, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other de- partments, are bound by that instrument. The rule must ie discharged. Note. — The principle that the courts have authority to pass upon the validity of legislation had been asserted in at least five States before the adoption of the Constitution, — ^viz., in Holmes V. Walton, in New Jersey, 1780; in Commonwealth v. Caton, in Virginia, in 1782; in Eutgers v. Waddington, in New York, in 1784; in Trevett t. Weeden, in Rhode Island, in 1786; and in Bayard v. Singleton, in North Carolina, in 1787. All these cases save the first are printed in Thayer's Cases, 1, 55-80. In 1792 the Supreme Court of South Carolina, in the case of Bowman v. Mid- dleton (1 Bay., 262), declared that an act passed by the Colonial Legislature in 1712, which took away the freehold of one man and vested it in another without any compensation or even a trial by the jury of the country, was "against common right, as well as MARBURY T. MADISON. 25 against Magna Charta," and "therefore ipso facto void." For a valuable discussion of these early Constitutional cases, see an article on "The Eelation of the Judiciary to the Constitution," by W. M. Meigs, in American Law Review, xix, 175 (1885). See also Coxe, The Judicial Power and Unconstitutional Legislation, 219-271. A most admirable discussion of the whole question is found in an article on "The Origin and Scope of the American Doctrine of Constitutional Law," by Prof. James B. Thayer, in Harvard Law Eeview, vii, 129 (1893). For an adverse view of the power of the courts over unconstitutional legislation, see Eakin v. Eaub, 13 Sergeant and Eawle (Pennsylvania), 330,. also printed in Thayer's Cases, I, 133. A list of cases in which the Federal Supreme Court has declared statutes or parts of statutes invalid is given in 131 U. S. Appendix, ccxxxv. The list is incomplete, one of the nyist conspicuous omissions being the Dred Scott case. "The interpretation of the laws is the proper and peculiar prov- ince of the courts. A Constitution is, in fact, and must be re- garded by the Judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred: in other words, the Constitution ought to be preferred to the statutes, the intention of the people to the in- tention of their agents." Hamilton, in The Federalist, Ko. 78. "If they [the government of the United States] were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void." John Marshall, in the "Virginia Convention of 1788, Elliot's De- bates, III, 553. "To control the power and conduct of the legislature, by an overruling constitution, was an improvement in the science and practice of government reserved to the American states." James Wilson, in the Pennsylvania Convention of 1787, Elliot's De- bates, II, 432. II. TAXATION. HYLTON V. THE UNITED STATES. 3 Dallas, 171. Decided 1796. This was a writ of error to the circuit court of the United States for the district of Virginia. The question raised, and all the facts necessary to be adverted to, appear in the opinions of the members of the court. . . , The court delivered these opinions seriatim, in the following terms.^ Chase, J. By the case stated, only one question is submitted to the opinion of this court: Whether the law of congress of the 5th of June, 1794 (1 U. S. Stat, at Large, 373), entitled, "An act to lay duties upon carriages for the conveyance of persons," is unconstitutional and void? The principles laid down to prove the above law void, are these: That a tax on carriages is a direct tax, and therefore, by the con- stitution, must be laid according to the census directed by the con- stitution to be taken, to ascertain the number of representatives from each State. And that the tax in question, on carriages, is not laid by that rule of apportionment, but by the rule of uni- formity, prescribed by the constitution in the case of duties, im- posts, and excises; and a tax on carriages is not within either of those descriptions. . . . The constitution evidently contemplated no taxes as direct taxes, but only such as congress could lay in proportion to the census. The rule of apportionment is only to be adopted in such cases where it can reasonably apply; and the subject taxed must ever determine the application of the rule. If it is proposed to tax any specific article by the rule of appor- tionment, and it would certainly create great inequality and injus- tice, it is unreasonable to say that the constitution intended such tax should be laid by that rule. 1 The Chief Justice, Ellsworth, whole of the argument, he declined was sworn Into oiHce in the morn- taking any part in the decision of lug; but not having heard the this cause. 26 HYLTON V. UNITED STATES. 27 It appears to me that a tax on carriages cannot be laid by the rule of apportionment, without very great inequality and injustice. For example, suppose two States, equal in census, to pay eighty thousand dollars each, by a tax on carriages of eighty dollars on every carriage, and in one State there are one hundred carriages and in the other one thousand. The owners of carriages in one State would pay ten times the tax of owners in the other. A, in one State, would pay for his carriage eight dollars; but B, in the other State, would pay for his carriage, eighty dollars. It was argued that a tax on carriages was a direct tax, and might be laid according to the rule of apportionment, and, as I under- stood, in this manner: Congress, after determining on the gross sum to be raised, was to apportion it according to the census and then lay it in one State on carriages, in another on horses, in a third on tobacco, in a fourth on rice, and so on. I admit that this mode might be adopted to raise a certain sum in each State, ac- cording to the census, but it would not be a tax on carriages, but on a number of specific articles; and it seems to me that it would be liable to the same objection of abuse and oppression, as a selec- tion of any one article in all the States. I think an annual tax on carriages for the conveyance of persons, may be considered as within the power granted to congress to lay duties. The term dutjr, is the most comprehensive, next to the general term tax; and practically in Great Britain, whence we take our general ideas of taxes, duties, imposts, excises, customs, &c., embraces taxes on stamps, tolls for passage, &c., &c., and is not confined to taxes on importation only. It seems to me that a tax on expense is an indirect tax; and I think an annual tax on a carriage for the conveyance of persons, is of that kind; because a carriage is a consumable commodity, and such annual tax on it, is on the expense of the owner. I am inclined to think, but of this I do not give a judicial opin- ion, that the direct taxes contemplated by the constitution, are only two, to wit, a capitation or poll tax, simply without regard to property, profession, or any other circumstance; and a tax on land. I doubt whether a tax, by a general assessment of personal prop- erty, within the United States, is iaeluded within the term direct tax. As I do not think the tax on carriages is a direct tax, it is un- necessary at this time for me to determine whether this court constitutionally possesses the power to declare an act of congress sroid, on the ground of its being made contrary to, and in violation I 28 CASES ON CONSTITUTIONAL LAW. of the constitution; but if the court have such power, I am free to declare, that I will never exercise it but in a very clear case. I am for affirming the judgment of the circuit court. Pateeson, J. . . . What are direct taxes within thiE mean- ing of the constitution? The constitution declares that a capita- tion tax is a direct tax; and both in theory and practice, a tax on land is deemed to be a direct tax. In this way, the terms direct taxes, and capitation and other direct tax, are satisfied. It is not necessary to determine, whether a tax on the product of land be a direct or indirect tax. Perhaps the immediate product of land, in its original and crude state, ought to be considered as the land itself; it makes part of it, or else the provision made against tax- ing exports would be easily eluded. Land, independently of its produce, is of no value. When the produce is converted into a manufacture it assumes a new shape; its nature is altered, its orig- inal state is changed, it becomes quite another subject, and it will be differently considered. Whether direct taxes, in the sense of the constitution, comprehend any other tax than a capitation tax, and tax on land, is a questionable point. If congress, for instance, should tax, in the aggregate or mass, things that generally pervade all the States in the Union, then perhaps the rule of apportionment would be the most proper, especially if an assessment was to inter- vene. This appears, by the practice of some of the States, to have been considered as a direct tax. Whether it be so under the con- stitution of the United States is a matter of some difficulty; but as it is not before the court, it would be improper to give any decisive opinion upon it. I never entertained a doubt that the principal, I will not say the only objects, that the framers of the constitution contemplated as falling within the rule of apportion- ment, were a capitation tax and a tax on land. Local considered tions, and the particular circumstances and relative situation of the States, naturally lead to this view of the subject. The pro- vision was made in favor of the southern States. They possessed a large number of slaves; they had extensive tracts of territory, thinly settled and not very productive. A majority of the States had but few slaves, and several of them a limited territory, well settled, and in a high state of cultivation. The Southern States, if no provision had been introduced in the constitution, would have been wholly at the mercy of the other States. Congress in euch case might tax slaves, at discretion or arbitrarily, and land in every part of the Union after the same rate or measure; so much a head in the first instance, and so much an acre in the second. HYLTON r. UNITED STATES. 29 To guard them against imposition, in these particulars, was the reason of introducing the clause in the constitution which directs that representatives and direct taxes shall be apportioned among the States according to their respective numbers. . . . All taxes on expense or consumption are indirect taxes. A tax on carriages is of this kind, and of course is not a direct tax. In- direct taxes are circuitous modes of reaching the. revenue of indi- viduals, who generally live according to their income. In many cases of this nature the individual may be said to tax himself. I shall close this discourse with reading a passage or two from Smith's Wealth of Nations. "The impossibility of taxing people in proportion to their rev- enue by any capitation, seems to have given occasion to the inven- tion of taxes upon consumable commodities; the State not know- ing how to tax directly and proportionably the revenue of its sub- jects, endeavors to tax it indirectly by taxing their expense, which it is supposed in most cases will be nearly in proportion to their revenue. Their expense is taxed by taxing the consumable com- modities upon which it is laid out." Vol. iii, 331. "Consumable commodities, whether necessaries or luxuries, may be taxed in two different ways; the consumer may either pay an annual sum on account of his using or consuming goods of a cer- tain kind, or the goods may be taxed while they remain in the hands of the dealer, and before they are delivered to the consumer. The consumable goods, which last a considerable time before they are consumed altogether, are most properly taxed in the one way; those of which the consumption is immediate, or more speedy, in the other; the coach tax and plate tax are examples of the former method of imposing; the greater part of the other duties of excise and customs, of the latter." Vol. iii, p. 341. I am, therefore, of opinion that the judgment rendered in the circuit court of Virginia ought to be affirmed. Ihedell, J. I agree in opinion with my brothers, who have al- ready expressed theirs, that the tax in question is agreeable to the constitution; and the reasons which have satisfied me can be de- livered in a very few words, since I think the constitution itself affords a clear guide to decide the controversy. The congress possess the power of taxing all taxable objects, without limitation, with the particular exception of a duty on exports. There are two restrictions only on the exercise of this authority — 30 CASES ON CONSTITUTIONAL LAW. 1. All direct taxes must be apportioned. 2. All duties, imposts and excises must be uniform. If the carriage tax be a direct tax, within the meaning of the constitution, it must be apportioned. If it be a duty, impost, or excise, within the meaning of the constitution, it must be uniform. If it can be considered as a tax, neither direct within the mean- ing of the constitution, nor comprehended within the term duty, impost, or excise; there is no provision in the constitution, one way or another, and then it must be left to such an operation of the power, as if the authority to lay taxes had been given generally in all instances, without saying whether they should be apportioned or uniform; and in that case, I should presume, the tax ought to be uniform; because the present constitution was particularly in- tended to affect individuals, and not States, except in particular cases specified; and this is the leading distinction between the articles of confederation and the present constitution. As all direct taxes must be apportioned, it is evident that the constitution contemplated none as direct but such as could be apportioned. If this cannot be apportioned, it is, therefore, not a direct tax in the sense of the constitution. That this tax cannot be apportioned is evident. Suppose ten dollars contemplated as a tax on each chariot, or post chaise, in the United States, and the number of both in all the United States be computed at one hundred and five, the number of representatives in congresSj^this would produce in the whole one thousand and fifty dollars; the share of Virginia, being 19-105 parts, would be one hundred and ninety dollars; the share of Connecticut, being 7-105 parts, would be seventy dollars; then suppose Virginia had fifty carriages, Connecticut two, the share of Virginia being one hundred and ninety dollars, this must of course be collected from the owners of carriages, and there would therefore be collected from each carriage three dollars and eighty cents; the share of Connecticut being seventy dollars, each carriage would pay thirty- five dollars. If any State had no carriages, there could be no apportionment at all. This mode is too manifestly absurd to be supported, and has not even been attempted in debate. But two expedients have been proposed of a very extraordinary nature to evade the difficulty. 1. To raise the money a tax on carriages would produce, not by laying a tax on each carriage uniformly, but by selecting different articles in different States, so that the amount paid in each State may be equal to the sum due upon a principle of apportionment. HYLTON ▼. UNITED STATES. 31 One State might pay by a tax on earraiges, another by a tax on slaves, &e. I should have thought this merely an exercise of ingenuity, if it had not been pressed with some earnestness; and as this was done by gentlemen of high respectability in their profession, it deserves a serious answer, though it is very difficult to give such a one. 1. This is not an apportionment, of a tax on carriages, but of the money a tax on carriages might be supposed to produce, which is quite a different thing. 2. It admits that congress cannot lay an uniform tax on all car- riages in the Union, in any mode, but that they may on carriages in one or more States. They may therefore lay a tax on carriages in fourteen States, but not in the fifteenth. 3. If congress, according to this new decree, may select carriages as a proper object, in one or more States, but omit them in others, I presume they may omit them in all, and select other articles. Suppose, then, a tax on carriages would produce $100,000, and a tax on horses a like sum, $100,000, and $100,000 were to be apportioned according to that mode; gentlemen might amuse tliemselves with calling this a tax on carriages, or a tax on horses, while not a single carriage, nor a single horse was taxed throughout the Union. 4. Such an arbitrary method of taxing different States differ- ently, is a suggestion altogether new, and would lead, if practised^ to such dangerous consequences that it will require very powerful arguments to show that that method of taxing would be in any manner compatible with the constitution, with which at present, I deem it utterly irreconcilable, it being altogether destructive of the notion of a common interest, upon which the very principles of the constitution are founded, so far as the condition of the United States will admit. The second expedient proposed was, that of taxing carriages, among other things, in a general assessment. This amounts to saying that congress may lay a tax on carriages, but that they may not do it unless they blend it with other subjects of taxation. For this, no reason or authority has been given, and in addition to other suggestions offered by the counsel on that side, affords an irrefragable proof, that when positions plainly so untenable are offered to counteract the principle contended for by the opposite counsel, the principle itself is a right one; for, no one can doubt, that if better reasons conld have been offered, they would not have escaped the sagacity and learning of the gentlemen who of- fered them. 33 CASES ON CONSTITUTIONAL LAW. There is no necessity or propriety in determining what is, or is not a direct or indirect tax in all cases. Some difficulties may occur which we do not at present foresee. Perhaps a direct tax, in the sense of the constitution, can mean nothing but a tax on something inseparably annexed to the soil, something capable of apportionment under all such circum- stances. A land or a poll tax may be considered of this description. The latter is to be considered so particularly under the present constitution, on account of the slaves in the southern States, who give a ratio in the representation in the proportion of three to five. Either of these is capable of apportionment. In regard to other articles, there may possibly be considerable doubt. It is sufficient, on the present occasion, for the court to be satis- fied that this is not a direct tax contemplated by the constitution, in order to affirm the present judgment; since, if it cannot be ap- portioned, it must necessarily be uniform. I am clearly of opinion this is not a direct tax in the sense of the constitution, and, therefore, that the judgment ought to be affirmed. [Wilson, J., had rendered an opinion in this case in the Cir- cuit Court of Virginia, and now merely expressed his concurrence in the opinion of the court. Cushing, J., not having heard the arguments, did not deliver an opinion.] By the Couet. Let the judgment of the circuit court be affirmed. McCULLOCH V. THE STATE OE MAEYLAND ET AL. 4 Wheaton, 316. Decided 1819. Eehoe to the court of appeals of the State of Maryland. . , . [In April, 1816, Congress incorporated the Bank of the United States. In February, 1818, the general assembly of Maryland imposed "a tax on all. banks, or branches thereof, in the State of Maryland, not chartered by the legislature." MeCulloch, the cash- ier of the branch of the Bank of the United States established in the city of Baltimore, violated the latter act by issuing notes upon unstamped paper. The question submitted to the court for their decision in this case is as to the validity of the said act of the Mcculloch v. state of Maryland, 33 general assembly of Maryland, on the ground of its being repug- nant to the constitution of the United States, and the act of con- gress aforesaid, or one of them.J Maeshall, C. J., delivered the opinion of the court. In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union; and the plaintifE, on his part, contests the validity of an act which has been passed by the legislature of that State. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the govern- ment of the Union and of its members, as marked in that consti- tution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the supreme court of the United States has the con- stitution of our country devolved this important duty. The first question made in the cause is, has congress power to incorporate a bank? . , . [This part of the opinion is given infra, page 308.] It being the opinion of the court that the act incorporating the bank is constitutional; and that the power of establishing a branch in the State of Maryland might be properly exercised by the bank itself, we proceed to inquire: — 2. Whether the State of Maryland may, without violating the constitution, tax that branch? That the power of taxation is one of vital importance; that it is retained by the States; that it is not abridged by the grant of a similar power to the government of the Union; that it is to be concurrently exercised by the two governments: are truths which have never been denied. But, such is the paramount character of the constitution, that its capacity to withdraw any subject from the action of even this power, is admitted. The States are expressly forbidden to lay any duties on imports or exports, except what may be absolutely necessary for executing their inspection laws. If the obligation of this prohibition must be conceded — if it may re- strain a State from the exercise of its taxing power on imports and exports; the same paramount character would seem to restrain, as 3 34 CASES ON CONSTITUTIONAL LAW. it certainly may restrain, a State from such other exercise of this power, as is in its nature incompatible with, and repugnant to, the constitutional laws of the Union. A law, absolutely repug- nant to another, as entirely repeals that other as if express terms of repeal were used. On this ground the counsel for the hank place its claim to be exempted from the power of a State to tax its operations. There is no express provision for the case, but the claim has been sus- tained on a principle which so entirely pervades the constitution, is so intermixed with the materials which compose it, so inter- woven with its web, so blended with its texture, as to be incapable of being separated from it, without rending it into shreds. This great principle is, that the constitution and the laws made in pursuance thereof are supreme; that they control the consti- tution and laws of the respective States, and cannot be controlled by them. From this, which may be almost termed an axiom, other propositions are deduced as corollaries, on the truth or error of which, and on their application to this case, the cause has been fiupposed to depend. These are, 1. That a power to create implies & power to preserve. 3. That a power to destroy, if wielded by a different hand, is hostile to, and incompatible with, these powers to create and preserve. 3. That where this repugnancy exists, ihat authority which is supreme must control, not yield to that .over which it is supreme. These propositions, as abstract truths, would, perhaps, never be icontroverted. Their application to this case, however, has been .denied; and, both in maintaining the affirmative and the negative, a splendor of eloquence, and strength of argument, seldom, if ever, surpassed, have been displayed. The power of congress to create, and of course to continue^ the bailk, was the subject of the preceding part of this opinion; and is no longer to be considered as questionable. That the power of taxing it by the States may be exercised so as ,to destroy it, is too obvious to be denied. But taxation is said to be an absolute power, which acknowledges no other limits than ;tho8e expressly prescribed in the constitution, and like sovereign power of every other description, is trusted to the discretion of those who use it. But the very terms of this argument admit that the sovereignty of the State, in the article of taxation itself, is subordinate :tx), and may be controlled by, the constitution of the United States. Eow far it has been controlled by that instrument must be a question of construction. In making this construction, mo .principle ,nat ..declared, can be admissible, which would defeat Mcculloch v. state of Maryland. 35 the legitimate operations of a supreme government. It is of the very essence of supremacy to remove all obstacles to its action within its own sphere, and so to modify every power vested in sub- ordinate governments, as to exempt its own operations from their own influence. This effect need not be stated in terms. It is so involved in the declaration of supremacy, so necessarily implied in it, that the expression of it could not make it more certain. We must, therefore, keep it in view while construing the constitution. The argument on the part of the State of Maryland, is, not that the States may directly resist a law of congress, but that they may exercise their acknowledged powers upon it, and that the consti- tution leaves them this right in the confidence that they will not abuse it. Before we proceed to examine this argument, and to subject it to the test of the constitution, we must be permitted to bestow a few considerations on the nature and extent of this original right of taxation, which is acknowledged to remain with the States. It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legiti- mately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power, is found in the structure of the government itself. In imposing a tax the legisla- ture acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people of a State, therefore, give to their government a right of taxing themselves and their property, and as the exigencies of government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their rep- resentatives, to guard them against its abuse. But the means employed by the government of the Union have no such security, nor is the right of a State to tax them sustained by the same theory. Those means are not given by the people of a particular State, not given by the constituents of the legislature, which claim the right to tax them, but by the people of all the States. They are given by all, for the benefit of all — and upon theory, should be subjected to that government only which belongs to all. It may be objected to this definition, that the power of taxation is not confined to the people and property of a State. It may be exercised upon every object brought within its jurisdiction. This is true. But to what source do we trace this right? It is obvious, that it is an incident of sovereignty, and is co-extensive 36 CASES ON CONSTITUTIONAL LAW. with that to -which it is an incident. All subjects over which the sovereign power of a State extends, are objects of taxation; but those over which it does not extend, are, upon the soundest prin- ciples, exempt from taxation. This proposition may almost' be pro- nounced self-evident. The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission; but does it extend to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State. They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of a single State cannot confer a sovereignty which will extend over them. If we measure the power of taxation residing in a State, by the extent of sovereignty which the people of a single State possess, and can confer on its government, we have an intelligible stand- ard, applicable to every ease to which the power may be applied. We have a principle which leaves the power of taxing the people and property of a State unimpaired; which leaves to a State the command of all its resources, and which places beyond its reach, all those powers which are conferred by the people of the United States on the government of the Union, and all those means which are given for the purpose of carrying those powers into exft. eution. We have a principle which is safe for the States, and safe for the Union. We are relieved, as we ought to be, from clashing sovereignty; from interfering powers; from a repugnancy be- tween a right in one government to pull down what there is an acknowledged right in another to build up; from the incompati- bility of a right in one government to destroy what there is a right in another to preserve. We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of tax- ation is the legitimate use, and what degree may amount to the abuse of the power. The attempt to use it on the means em- ployed by the government of the Union, in pursuance of the con- stitution, is itself an abuse, because it is the usurpation of a power, which the people of a single State cannot give. We find, then, on just theory, a total failure of this original right to tax the means employed by the government of the Union, for the execution of its powers. The right never existed, and the question whether it has been surrendered, cannot arise. But, waiving this theory for the present, let us resume the in- Mcculloch v. state of Maryland. 37 quiry, whether this power can be exercised by the respective States, consistently with a fair construction of the constitution? That the power to tax involves the power to destroy; that thef ipower to destroy may defeat and render useless the power to ere-/ ate; that there is a plain repugnance, in conferring on one gov-| lernment a power to control the constitutional measures of another, 'which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word confidence. Taxation, it is said, does not necessarily ajid unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which, would banish that confidence which is essential to all government. But is this a case of confidence? Would the people of any one State trust those of another with a power to control the most insignificant operations of their state government? We know they would not. Why, then, should we suppose that the people of any one State should be willing to trust those of another with a power to control the operations of a government to which they have confided their most important and most valuable interests? In the legislature of the Union alone, are all represented. The legislature of the Union alone,' therefore, can be trusted by the people with the power of controlling measures which concern all, in the confidence that it will not be abused. This, then, is not a case of confidence, and we must consider it as it really is. If we apply the principle for which the State of Maryland con- tends, to the constitution generally, we shall find it capable of changing totally the character of that instrument. We shall find it capable of arresting all the measures of the government, and of prostrating it at the foot of the States. The American people have declared their constitution, and the laws made in pursuance thereof, to be supreme; but this principle would trans- fer the supremacy, in fact, to the State. If the States may tax one instrument, employed by the govern- ment in the execution of its powers, they may tax any and every other instrument. They may tax the mail; they may tax the mint; they may tax patent rights; they may tax the papers of the custom-house; the may tax judicial process; they may tax all the means employed by the government, to an excess which would defeat all the ends of government. This was not intended by the American people. They did not design to make their govern- ment dependent on the States. Gentlemen say, they do not claim the right to extend State 38 CASES ON CONSTITUTIONAL LAW. taxation to these objects. They limit their pretensions to prop- erty. But on what principle is this distinction made? Those who make it have furnished no reason for it, and the principle for which they contend denies it. They contend that the power of taxation has no other limit than is found in the 10th section of the 1st article of the constitution; that, with respect to every- thing else, the power of the States is supreme, and admits of no control. If this be true, the distinction between property and other subjects to which the power of taxation is applicable, is merely arbitrary, and can never be sustained. This is not all. If the controlling power of the States be established; if their supremacy as to taxation be acknowledged; what is to restrain their exercising this control in any shape they may please to give it? Their sovereignty is not confined to taxation. That is not the only mode in which it might be displayed. The question is, in truth, a question of supremacy; and if the right of the States to tax the means employed by the general government be conceded, the declaration that the constitution, and the laws made in pur- suance thereof, shall be the supreme law of the land, is empty and unmeaning declamation. In the course of the argument, the Federalist has been quoted; and the opinions expressed by the authors of that work have been justly supposed to be entitled to great respect in expounding the constitution. No tribute can be paid to them which exceeds their merit; but in applying their opinions to the eases which Taay arise in the progress of our government, a right to judge of their correctness must be retained; and, to understand the argu- ment, we must examine the proposition it maintains, and the objections against which it is directed. The subject of those numbers, from which passages have been cited, is the unlimited power of taxation which is vested in the general government. The objection to this unlimited power, which the argument seeks to remove, is stated with fullness and clearness. It is "that an in- definite power of taxation in the latter (the government of the Union) might, and probably would, in time, deprive the former (the government of the States) of the means of providing for their own necessities; and would subject them entirely to the mercy of the national legislature. As the laws of the Union are to be- come the supreme law of the land; as it is to have power to pass all laws that may be necessary for carrying into execution the authorities with which it is proposed to vest it; the national government might at any time abolish the taxes imposed for State objects, upon the pretense of an interference with its own. Mcculloch v. state of Maryland. 39 It might allege a necessity for doing this, in order to giye effi- cacy to the national revenues; and thus all the resources of tax- ation might, by degrees, become the subjects of federal monopoly, to the entire exclusion and destruction of the state governments." The objections to the constitution which are noticed in these numbers, were to the undefined power of the government to tax, not to the incidental privilege of exempting its own measures from State taxation. The consequences apprehended from this unde- fined power were, that it would absorb all the objects of taxation, "to the exclusion and destruction of the state governments." The arguments of the Federalist are intended to prove the fallacy of these apprehensions; not to prove that the government was in- capable of executing any of its powers, without exposing the means it employed to the embarrassments of State taxation. Argu- ments urged against these objections, and these apprehensions, are to be understood as relating to the points they mean to prove. Had the authors of those excellent essays been asked, whether they Contended for that construction of the constitution, which would place within the reach of the States those measures which the government might adopt for the execution of its powers; no man, who has read their instructive pages, will hesitate to admit, that their answer must have been in the negative. It has also been insisted, that, as the power of taxation in the general and state governments is acknowledged to be concurrent, every argument which would sustain the right of the general gov- ernment to tax banks chartered by the States, will equally sustain the right of the States to tax banks chartered by the general government. But the two cases are not on the same reason. The people of all the States have created the general government, and have con- ferred upon it the general power of taxation. The people of all the States, and the States themselves, are represented in congress, and, by their representatives, exercise this power. When they tax the chartered institutions of the States, they tax their constitu- ents; and these taxes must be uniform. But when a State taxes the operations of the , government of the United States, it acts upon institutions created, not by their own constituents, but by people over whom they claim no control. It acts upon the meas- ures of a government created by others as well as themselves, for the benefit of others in common with themselves. The difference is that which always exists, and always must exist, between the action of the whole on a part, and the action of a part on the whole — ^between the laws of a government declared to be supreme. 40 CASES ON CONSTITUTIONAL LAW. and those of a govermnent which, when in opposition to those laws, is not supreme. But if the full application of this argument could be admitted, it might bring into question the right of congress to tax the state banks, and could not prove the right of the States to tax the Bank of the United States. The court has bestowed on this subject its most deliberate con- sideration. The result is a conviction that the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable conse- quence of that supremacy which the constitution has declared. We are unanimously of opinion, that the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. This opinion does not deprive the States of any resources which they originally possessed. It does not extend to a tax paid by the real property of the bank, in common with the other real property within the State, nor to a tax imposed on the interest which the citizens of Maryland may hold in this institution, in common with other property of the same description throughout the State. But this is a tax on the operations of the bank, and is, consequently, a tax on the operation of an instrument employed by the government of the Union to carry its powers into execution. Such a tax must be unconstitutional. Judgment. This cause came on to be heard on the transcript of the record of the court of appeals of the State of Maryland, and was argued by counsel. On consideration whereof, it is the opinion of this court that the act of the legislature of Maryland is contrary to the constitution of the United States, and void. Note. — "A case could not be selected from the decisions of the Supreme Court of the United States, superior to this «jae of Mc- CuUoch V. Maryland, for the clear and satisfactory manner in which the supremacy of the laws of the Union have been main- tained by the court, and an undue assertion of State power over- ruled and defeated." Kent's Commentaries, I., 438. WB3ST0N ET AL v. CITY OF CHARLESTON. 41 WESTON ET AL. v. THE CITY COUNCIL OF CHAELESTON. ^ Peters, 449. Decided 1829; Error to the constitutional court of South Carolina. By an ordinance of the city of Charleston, "stock of ithe United States" was, among other things, made taxable. The plaintiffs, as owners ■of such stock, applied to the court of common pleas of the Charles- ton district for a prohibition to restrain the city council from taxing that stock, on the ground that the tax would be incon- sistent with the constitution of the United States. The prohi- bition having been granted, the proceedings were removed into the constitutional court, where four of the seven judges being of opinion that the tax would be valid, reversed the order for a prohibition, and thereupon this writ of error was brought. . . . Maeshall, C. J., delivered the opinion of the court. . . . . . . This brings us to the main question. Is the stock issued for loans made to the government of the United States liable to be taxed by States and corporations? Congress has power "to borrow money on the credit of the United States." The stock it issues is the evidence of a debt created by the exercise of this power. The tax in question is a tax upon the contract subsisting between the government and the individual. It bears directly upon that contract, while subsist- ing and in full force. The power operates upon the contract the instant it is framed, and must imply a right, to affect that con- tract. If the States and corporations throughout the Union, pos- sess the power to tax a contract for the loan of money, what shall arrest this principle in its application to every other contract? What measure can government adopt which will not be exposed to its influence? But it is unnecessary to pursue this principle through its di- versified application to all the contracts, and to the various op- erations of government. No one can be selected which is of more vital interest to the community than this of borrowing money on the credit of the United States. No power has been conferred by the American people on their government, the free and unburdened exercise of which more deeply affects every member of our repub- lic. In war, when the honor, the safety, the independence of the nation are to be defended, when all its resources are to be strained to the utmost, credit must be brought in aid of taxation, and the 42 CASES ON CONSTITUTIONAL LAW, abundant revenue of peace and prosperity must be anticipated to supply the exigencies, the urgent demands of the moment. The people, for objects the most important which can occur in the progress of nations, have empowered their government to make these anticipations, "to borrow money on the credit of the United States." Can anything be more dangerous, or more injurious, than the admission of a principle which authorizes every State and every corporation in the Union which possesses the right of taxa/- tion, to burden the exercise of this power at their discretion? If the right to impose the tax exists, it is a right which in its nature acknowledges no limits. It may be carried to any extent within the jurisdiction of the State or corporation which im- poses it, which the will of each State and corporation may pre- scribe, A power which is given by the whole American people for their common good, which is to be exercised at the most critical periods for the most important purposes, on the free exercise of which the interests certainly, perhaps the liberty of the whole may depend; may be burdened, impeded, if not arrested, by any of the organized parts of the confederacy. In a society formed like ours, with one supreme government for national purposes, and numerous state governments for other purposes, in many respects independent, and in the uncontrolled exercise of many important powers, occasional interferences ought not to surprise us. The power of taxation is one of the most essential to a State, and one of the most extensive in its opera- tion. The attempt to maintain a rule which shall limit its exer- cise, is undoubtedly among the most delicate and dif&cult duties which can devolve on those whose province it is to expound the supreme law of the land in its application to the cases of individ- uals. This duty has more than once devolved on this court. In the performance of it we have considered it as a necessary conse- quence from the supremacy of the government of the whole, that its action in the exercise of its legitimate powers, should be free and unembarrassed by any conflicting powers in the possession of its parts; that the powers of a State cannot rightfully be so exer- cised as to impede and obsitruct the free course of those meas- ures which the government of the States united may rightfully adopt. This subject was brought before the court in the case of Mc- CuUoch V. The State of Maryland, 4 Wheaton, 316, when it was thoroughly argued and deliberately considered. The question decided in that case bears a near resemblance to that which is involved in this. It was discussed at the bar in all its relations. WESTON ET AL v, CITY OF CHARLESTON. 43 and examined by the court with its utmost attention. "We will not repeat the reasoning which conducted us to the conclusion thus formed, but that conclusion was that "all subjects over which the sovereign power of a State extends, are objects of taxation; bui those over which it does not extend, are upon the soundest principles exempt from taxation." "The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission;" but not "to those means which are employed by congress to carry into execution powers conferred on that body by the people of the United States." "The attempt to use" the power of taxation "on the means employed by the gov- ernment of the Union in pursuance of the constitution, is itself an abuse, because it is the usurpation of a power which the people of a single State cannot give." The court said in that case, that "the States have no power by taxation, or otherwise, to retard, impede, burden, or in any manner control the operation of the constitutional laws enacted by congress, to carry into execution the powers vested in the gen- eral government." We retain the opinions which were then expressed. A con- tract made by the government in the exercise of its power, to borrow money on the credit of the United States, is undoubtedly independent of the will of any State in which the individual who lends may reside, and is undoubtedly an operation essential to the important objects for which the government was created. Tt ought, therefore, on the principles settled in the case of McCulloch V. The State of Maryland, to be exempt from state taxation, and consequently from being taxed by corporations deriving their power from States. It is admitted that the power of the government to borrow money cannot be directly opposed, and that any law directly ob- structing its operation would be void; but a distinction is taken between direct opposition and those measures which may conse- quentially afEect it; that is, that a law prohibiting loans to the United States would be void, but a tax on them to any amount is allowable. It is, we think, impossible not to perceive the intimate con- nection which exists between these two modes of acting on the subject. It is not the want of original power in an independent sovereign State, to prohibit loans to a foreign government, which restrains the legislature from direct opposition to those made by the United States. The restraint is imposed by our constitution. The Amer- M CASES ON CONSTITUTIONAL LAW. ican people have conferred the power of borrowing money on their government, and by making that government supreme, have shielded its action, in the exercise of this power, from the action of the local governments. The grant of the power is incompatible with a restraining or controlling power, and the declaration of supremacy is a declaration that no such restraining or controlling power shall be exercised. The right to tax the contract to any extent, when made, must operate upon the power to borrow before it is exercised, and have a sensible influence on tlie contract. The extent of this influence depends on the will of a distinct government. To any extent, horwever inconsiderate, it is a burden on the operations of govern- ment. It may be carried to an extent which shall arrest them entirely. It is admitted by the counsel for the defendants, that the power to tax stock must affect the terms on which loans will be made; but this objection, it is said, has no more weight when urged against the application of an acknowledged power to government stock, than if urged against its application to lands sold by the United States. The distinction is, we think, apparent. When lands are sold, no connection remains between the purchaser and the government. The lands purchased become a part of the mass of property in the country with no implied exemption from common burdens. All lands are derived from the general or particular government, and all lands are subject to taxation. Lands sold are in the condition of money borrowed and repaid. Its liability to taxation in any form it may then assume is not questioned. The connection be- tween the borrower and the lender is dissolved. It is no burden on loans, it is no impediment to the power of borrowing, that the money, when repaid, loses its exemption from taxation. But a tax upon debts due from the government, stands, we think, on very dif- ferent principles from a tax on lands which the government has sold. "The Federalist" has been quoted in the argument, and an elo- quent and well-merited eulogy has been bestowed on the great statesman who is supposed to be the author of the number from which the quotation was made. This high authority was also relied upon in the case of McCuUoch v. The State of Maryland, and was considered by the court. Without repeating what was then said, we refer to it as exhibiting our view of the sentiments expressed on this subject by the authors of that work. It has been supposed that a tax on stock comes within the LICENSE TAX CASES. 45 exceptions stated in the case of McCulloch v. The State of Mary- land. We do not think so. The bank of the United States is an anstrument essential to the fiscal operations of the government, and the power which might be exercised to its destruction was denied. But property acquired by that corporation in a State was supposed to be placed in the same condition with property acquired by an individual. The tax on government stock is thought by this court to be a tax on the contract, a tax on the power to borrow money on the credit of the United States, and consequently to be repugnant to the constitution. We are, therefore, of opinion that the judgment of the constitu- tional court of the State of South Carolina, reversing the order made by the court of common pleas, awarding a prohibition to the city council of Charleston, to restrain them from levying a tax imposed on six and seven per cent, stock of the United States, under an ordinance to raise supplies to the use of the city of Charleston for the year 1823, is erroneous in this; that the said constitutional court adjudged that the said ordinance was not repugnant to the constitution of the United States; whereas, this court is of opinion that such repugnancy does exist. We are, there- fore, of opinion that the said judgment ought to be reversed and annulled, and the cause remanded to the constitutional court for the State of South Carolina, that further proceedings may be had therein according to law. [Justices Johnson and Thompson delivered dissenting opin- ions.] LICENSE TAX CASES. 6 Wallace, 462. Decided 1866. [By the internal revenue act of 1864, subsequently amended. Congress enacted that all persons intending to engage in certain occupations, including the selling of lottery tickets and the retail- ing of liquors, should first obtain a license from the United States. (See 13 Stat, at Large, 348, 249, 252, 473, 485; 14 Id., 113, 116, 137, 301.) In New York and New Jersey, the selling of lottery tickets, and in Massachusetts, the retailing of liquors (except in certain specified cases), were strictly forbidden. 46 CASES ON CONSTITUTIONAL LAW. In this condition of statute law, national and State, seven cases were brought before the Supreme Court. All of them arose under the provisions of the internal revenue acts relating to licenses for selling liquors and dealing in lotteries, and to special taxes on the latter business. In five of the cases the general question was: Can the defend- ants be equally convicted upon the several indictments found against them for not having complied with the acts of Congress by taking out and paying for the required licenses to carry on the business in which they were engaged, such business being wholly prohibited by the laws of the several States in which it was car- ried on? In the other two cases the general question was: Could the de- fendants be legally convicted upon an indictment for being en- gaged in a business on which a special tax is imposed by acts of Congress, without having paid such a special tax, notwithstanding that such business was, and is wholly prohibited by the laws of New York?] The Chief Justice, having stated the case, delivered the opin- ion of the court. In the argument of all the cases here before the court, it was strenuousljr maintained by counsel for the defendants that the imposition of penalties for carrying on any business prohibited by State laws, without payment for the license or special tax required by Congress, Is contrary to public [policy. . . . This court can know nothing of public policy except from the Constitution and the laws, and the course of administration and decision. It has no legislative powers. It cannot amend or modify any legislative acts. It cannot examine questions as expedient or inexpedient, as politic or impolitic. Considerations of that sort must, in general, be addressed to the legislature. Questions of policy determined there are concluded here. . . . We come now to examine a more serious objection to the legisla- tion of Congress in relation to the dealings in controversy. It was argued for the defendants in error that a license to carry on a par- ticular business gives an authority to carry it on; that the deal- ings in controversy were parcel of the internal trade of the State in which the defendants resided; that the internal trade of a State is not subject, in any respect, to legislation by Congress, and can neither be licensed nor prohibited by its authority; that licenses for such trade, granted under acts of Congress, must therefore be absolutely null and void; and, consequently, that penalties for LICENSE TAX CASES. 47 carrying on such trade without such license could not be constitu- tionally imposed. This series of propositions, and the conclusion in which it ter- minates, depends on the postulate that a license necessarily con- fers an authority to carry on the licensed business. But do the licenses required by the acts of Congress for selling liquor and lot- tery tickets confer any authority whatever? It is not doubted that where Congress possesses constitutional power to regulate trade or intercourse, it may regulate by means of licenses as well as in other modes; and, in case of such regula- tion, a license wiU give to the licensee authority to do whatever is authorized by its terms. Thus, Congress having power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes, may, without doubt, provide for granting coasting licenses, licenses to pilots, licenses to trade with the Indians, and any other licenses necessary or proper for the exercise of that great and extensive power; and the same observation is applicable to every other power of Congress, to the exercise of which the granting of licenses may be incident. All such licenses confer authority, and give rights to the licensee. But very different considerations apply to the internal com- merce or domestic trade of the States. Over this commerce and trade Congress has no power of regulation nor any direct control. This power belongs exclusively to the States. No interference by Congress with the business of citizens transacted within a State is vrarranted by the Constitution, except such as is strictly inci- dental to the exercise of powers clearly granted to the legislature. The power to authorize a business within a State is plainly repug- nant to the exclusive power of the State over the same subject. It is true that the power of Congress to tax is a very extensive power. It is given in the Constitution, with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity. Thus limited, and thus only, it reaches every subject, and may be exercised at discretion. But it reaches only existing subjects. Congress cannot authorize a trade or business within a State in order to tax it. If, therefore, the licenses under consideration must be regarded as giving authority to carry on the branches of business which they license, it might be difficult, if not impossible, to reconcile the granting of them with the Constitution. But it is not necessary to regard these laws as giving such author- 48 CASES ON CONSTITUTIONAL LAW. ity. So far as they relate to trade within State limits, they give none, and can give none. They simply express the purpose of the government not to interfere by penal proceedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for non- payment of taxes. The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and of implying nothing except that the licensee shall be subject to no penalties under national law, if he pays it. This construction is warranted by the practice of the govern- ment from its organization. As early as 1794 retail dealers in wines or in foreign distilled liquors were required to obtain and pay for licenses, and renew them annually, and penalties were im- posed for carrying on the business without compliance with the law.^ In 1803 these license-taxes and the other excise or internal taxes, which had been imposed under the exigencies of the time, being no longer needed, were abolished.^ In 1813 revenue from excise was again required, and laws were enacted for the licensing of retail dealers in foreign merchandise, as weU as to retail dealers in wines and various descriptions of liquors.* These taxes also were abolished after the necessity for them had passed away, in 1817.* No claim was ever made that the licenses thus required gave authority to exercise trade or carry on business within a State. They were regarded merely as a convenient mode of imposing taxes on several descriptions of business, and of ascertaining the par- ties from whom such taxes were to be collected. With this course of legislation in view, we cannot say that there is anything contrary to the Constitution in these provisions of the recent or existing internal revenue acts relating to licenses. Nor are we able to perceive the force of the other objection made in argument, that the dealings for which licenses are required be- ing prohibited by the laws of the State, cannot be taxed by the National government. There would be great force in it if the licenses were regarded as giving authority, "for then there would be a direct conflict between National and State legislation on a subject which the Constitution places under the exclusive con- trol of the States. But, as we have already said, these licenses give no authority. They are mere receipts for taxes. And this would be. true had the internal revenue act of 1864, like those of 1794 and 1813, been 1 1 Stat, at Large, 377. 8 3 id., 72. 2 Id., 148. 4 Id., 401. CRANDALL v. STATE OF NEVADA. 49 silent on this head. Bnt it was not silent. It expressly provided, in section sixty-seven, that no license provided for in it should, if granted, he construed to authorize any business with any State or Territory prohibited by the laws thereof, or so as to prevent the taxation of the same business by the State. This provision not only recognizes the full control by the State of business carried on within their limits, but extends the same principle, so far as such business licensed by the national government is concerned, to the Territories. There is nothing hostile or contradictory, therefore, in the acts of Congress to the legislation of the States. What the latter pro- hibits, the former, if the business is found existing notwithstand- ing the prohibition, discourages by taxation. The two lines of legislation proceed in the same direction, and tend to the same result. It would be a judicial anomaly, as singular as indefensi- ble, if we should hold a violation of the laws of the State to be a justification for the violation of the laws of the Union. These considerations require an affirmative answer to the first general question, whether the several defendants, charged with carrying on business prohibited by State laws, without the licenses required by acts of Congress can be convicted and condemned to pay the penalties imposed by these acts? . . . CEAKDALL v. STATE OF NEVADA. 6 Wallace, 35. Decided 1867. Error to the Supreme Court of Nevada. In 1865, the legislature of Nevada enacted that "there shall be levied and collected a capitation tax of one dollar upon every per- son leaving the State by any railroad, stage-coach, or other vehicle engaged or employed in the business of transporting passengers for hire," and that the proprietors, owners, and corporations so engaged should pay the said tax of one dollar for each and every person so conveyed or transported from the State. For the pur- pose of collecting the tax, another section required from per- sons engaged in such business, or their agents, a report every month, under oath, of the number of passengers so transported, and the payment of the tax to the sheriff or other proper officer. With the statute in existence, Crandall, who was the agent of a 4 50 CASES ON CONSTITUTIONAL LAW. Btage company engaged in carrying passengers through the State of Nevada, was arrested for refusing to report the number of pas- sengers that had been carried by the coaches of his company, and for refusing to pay the tax of one dollar imposed on each passen- ger by the law of that State. He pleaded that the law of the State under which he was prosecuted was void, because it was in con- flict with the Constitution of the United States; and his plea being overruled, the case came into the Supreme Court of the State. That court — considering that the tax laid was not an impost on "exports," nor an interference with the power of Congress "to regulate commerce among the several States" — 'decided against the right thus set up under the Federal Constitution. Its judg- ment was now here for review. . . . Mr. Justice Milleh delivered the opinion of the court. The question for the first time presented to the court by this record is one of importance. The proposition to be considered is the right of a State to levy a tax upon persons residing in the State who may wish to get out of it, and upon persons not residing in it who may have occasion to pass through it. It is to be regretted that such a question should be submitted to our consideration, with neither brief nor argument on the part of plaintifE in error. But our regret is diminished by the reflection, that the principles which must govern its determination have been the subject of much consideration in cases heretofore decided by this court. It is claimed by counsel for the State that the tax thus levied is not a tax upon the passenger, but upon the business of the carrier who transports him. If the act were much more skillfully drawn to sustain this hy- pothesis than it is, we should be very reluctant to admit that_any form of words, which had the effect to compel every person travel- ing through the country by the common and usual modes of public conveyance to pay a specific sum to the State, was not a tax upon the right thus exercised. The statute before us is not, however, embarrassed by any nice diflieulties of this character. The lan- guage which we have just quoted is, that there shall be levied and collected a capitation tax upon every person leaving the State by any railroad or stage-coach; and the remaining provisions of the act, which refer to this tax, only provide a mode of collecting it. The officers and agents of the railroad companies, and the proprie- tors of the stage-coaches are made responsible fot this, and so be- come the collectors of the tax. CRANDALL v. STATE OF NEVADA. 51 We shall have occasion to refer hereafter somewhat in detail, to the opinions of the judges of this court in The Passenger Ca^es^^ in which there were wide differences on several points inTolved in the case before us. In the case from New York then under consid- eration, the statute provided that the health commissioner should be entitled to demand and receive from the master of every vessel that should arrive in the port of New York, from a foreign port, one dollar and fifty cents for every cabin passenger, and one dollar for each steerage passenger, and from each coasting vessel, twenty- five cents for every person on board. That statute does not use language so strong as the Nevada statute, indicative of a personal tax on the passenger, but merely taxes the master of the vessel ac- cording to the number of his passengers; but the court held it to be a tax upon the passenger, and that the master was the agent of the State for its collection. Chief Justice Taney, while he differed from the majority of the court, and held the law to be valid, said of the tax levied by the analogous statute of Massa- chusetts, that "its payment is the condition upon which the State permits the alien passenger to come on shore and mingle with its citizens, and to reside among them. It is demanded of the cap- tain; and not from every separate passenger, for convenience of collection. But the burden evidently falls upon the passenger, and he, in fact, pays it, either in the enhanced price of his passage or directly to the captain before he is aillowed to embark for the voyage. The nature of the transaction, and the ordinary course of business, show that this must be so." Having determined that the statute of Nevada imposes a tax upon the passenger for the privilege of leaving the State, or pass- ing through it by the ordinary mode of passenger travel, we pro- ceed to inquire if it is for that reason in conflict with the Con- stitution of the United States. In the argument of the counsel for the defendant in error, and in the opinion of the Supreme Court of Nevada, which is found in the record, it is assumed that this question must be decided by an exclusive reference to two provisions of the Constitution, namely: that which forbids any State, without the consent of Congress, to lay any imposts or duties on imports or exports, and that which confers on Congress the power to regulate commerce with foreign nations and among the several States. The question as thus narrowed is not free from difficulties. Can a citizen of the United States traveling fropi one part of the Union 17 Howard, 288. 52 CASES ON CONSTITUTIONAL LAW. to another be called an export? It was insisted in The Passenger Cases, to which we have already referred, that foreigners coming to this country were imports within the meaning of the Constitu- tion, and the provision of that instrument that the migration or importation of such persons as any of the States then existing should think proper to admit, should not be prohibited prior to the year 1808, bu.t that a tax might be imposed on such impor- tation, was relied on as showing that the word import, applied to persons as well as to merchandise. It was answered that this latter clause had exclusive reference to slaves, who were property as well as persons, and therefore proved nothing. While some of the judges who concurred in holding those laws unconstitu- tional, gave as one of their reasons that they were taxes on im- ports, it is evident that this view did not receive the assent of the majority of the court. The application of this provision of the Constitution to the proposition which we have stated in regard to the citizen, is still less satisfactory than it would be to the case of foreigners migrating to the United States. But it is unnecessary to consider this point further in the view which we have taken of the case. As regards the commerce clause of the Constitution, two prop- ositions are advanced on behalf of the defendant in error. 1. That the tax imposed by the State on passengers is not a regula- tion of commerce. 2. That if it can be so considered, it is one of the powers which the State can exercise, until Congress has so legislated as to indicate its intention to exclude State legislation on the same subject. The proposition that the power to regulate commerce, as granted to Congress by the Constitution, necessarily excludes the exercise by the States of any of the powers thus granted, is one which has been much considered in this court, and the earlier discus- sions left the question in much doubt. As late as the January Term, 1849, the opinions of the judges in The Passenger Cases show that the question was considered to be one of much impor- tance in those cases, and was even then unsettled, though previous decisions of the court were relied on by the judges themselves as deciding it in different ways. It was certainly, so far as those cases affected it, left an open question. In the case of Cooley v. Board of Wardens,^ four years later, the same question came directly before the court in reference to the local laws of the port of Philadelphia concerning pilots. 1 12 Howard, 299. CRANDALL v. STATE OF NEVADA. 53 . . . Perhaps no more satisfactory solution has ever been given of this vexed question than the one furnished by the court in that case. . . . It may be that under the power to regulate commerce among ■the States, Congress has authority to pass laws, the operation of which would be inconsistent with the tax imposed by the State of Nevada, but we know of no such statute now in existence. Inasmuch, therefore, as the tax does not itself institute any regu- lation of commerce of a national character, or which has a uniform operation over the whole coiintry, it is not easy to maintain, in view of the principles on which those cases are decided, that it violates the clause of the Federal Constitution which we have had under review. But we do not concede that the question before us is to be de- termined by the two clauses of the Constitution which we have been examining. The people of these United States constitute one nation. They have a government in which all of them are deeply interested. This government has necessarily a capital established by law, where, its principal operations are conducted. Here sits its legislature, composed of senators and representatives, from the States and from the people of the States. Here resides the President, direct- ing, through thousands of agents, the execution of the laws over all this vast country. Here is the seat of the supreme judicial power of the nation, to which all its citizens have a right to resort, to claim justice at its hands. Here are the great executive de- partments, administering the offices of the mails, of the public lands, of the collection and distribution of the public revenues, and of our foreign relations. These are all established and con- ducted under the admitted powers of the Federal government. That government has a right to call to this point any or all of its citizens to aid in its service, as members of the Congress, of the courts, of the executive departments, ajid to fill all its other offices; and this right cannot be made to depend upon the pleas- ure of a State over whose territory they must pass to reach the point where these services must be rendered. The government also, has its offices of secondary importance in all other parts of the country. On the sea-coasts and on the rivers it has its ports of entry. In the interior it has its land offices, its revenue offices, and its sub-treasuries. In all these it demands the services of its citizens, and is entitled to bring them to those points from all quarters of the nation, and no power can exist in a State to obstruct 54 CASES ON CONSTITUTIONAL LAW. this right that would not enable it to defeat the purposes for which the goTernment was established. The Federal power has a right to declare and prosecute wars, and, as a necessary incident, to raise and transport troops through and over the territory of any State of the Union. If this right is dependent in any sense, however limited, upon the pleasure of a State, the government itself may be overthrown by an obstruction to its exercise. Much the largest part of the transportation of troops during the late rebellion was by railroads, and largely through States whose people were hostile to the Union. If the tax levied by Nevada on railroad passengers had been the law of Tennessee, enlarged to meet the wishes of her people, the treasury of the United States could not have paid the tax nec- essary to enable its armies to pass through her territory. But if the government has these rights on her own account, the citizen also has correlative rights. He has the right to come to the seat of government to assert any claim he may have upon that government, or to transact any business he may have with it. To seek its protection, to share its offices, to engage in administering its functions. He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are con- ducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States> and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it. The views here advanced are neither novel nor unsupported by authority. The question of the taxing power of the States, as its exercise has affected the functions of the Federal government, has been repeatedly considered by this court, and the right of the States in this mode to impede or embarrass the constitutional op- erations of that government, or the rights which its citizens hold under it, has been uniformly denied. . . . [Here follows a discussion of McCulloch v. Md., 4 Wheat.., 316; Brown v. Md., 12 Wheat., 419; Weston v. Charleston, 2 Pet., 449.] In all these cases, the opponents of the taxes levied by the States were able to place their opposition on no express provision of the Constitution, except in that of Browii v. Maryland. But in all the other cases, and in that case also, the court distinctly placed the invalidity of the State taxes on the ground that they interfered with an authority of the Federal government, which was itself only to be sustained as necessary and propef to the exercise of some other power expressly granted. In The Passenger Cases, to which reference has already been CRANDALU V. STATE OF NEVADA. 55 made, Justice Grier, with whom Justice Catron concurred, makes this one of the four propositions on which they held the tax void in those cases. Judge Wayne expresses his dissent to Judge Grier's views; and perhaps this ground received the concurrence of more of the members of the court who constituted the majority than any other. But the principles here laid down may be found more clearly stated in the dissenting opinion of the Chief Justice in those cases, and with more direct pertinency to the case now before us than anywhere else. After expressing his views fully in favor of the validity of the tax, which he said had exclusive reference to foreigners, so far as those cases were concerned, he proceeds to say, for the purpose of preventing misapprehension, that so far as the tax affected American citizens it could not in his opinion be maintained. He then adds: "Living as we do under a common government, charged with the great concerns of tlie whole Union, every citizen of the United States from the most remote States or territories, is entitled to free access, not only to the principal departments established at Washington, but also to its judicial tribunals, and public ofBces in^ every State in the Union. . . . For all the great purposes for which the Federal government was formed we are one people, with one common country. We are all citizens of the United States, and as members of the same com- munity must have tlie right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State, for entering its territories or harbors, is inconsistent with the rights which belong to citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it." Although these remarks are found in a dissenting opinion, they do not relate to the matter on which the dissent was founded. They accord with the inferences which we have already drawn from the Constitution itself, and from the decisions of this court in exposition of that instrument. Those principles, as we have already stated them in this opinion, must govern the present case. . . . Judgment reversed, and the ease remanded to the Supreme Court of the State of Nevada, with directions to discharge the plaintiff in error from custody. 50 CASES ON CONSTITUTIONAL LAW. YEAZIE BANK v. FENNO. 8 Wallace, 533. Decided 1869. On certificate of division for the Circuit Court for Maine. The Constitution ordains that: "The Congress shall have power — "To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States. "To regulate commerce with foreign nations, and among the Several States, and with the Indian tribes. "To coin money, regulate the value thereof, and of foreign coin." It also ordains that: "Direct taxes shall be apportioned among the several States . . . according to their respective numbers." "No capitation or other direct tax shall be laid, unless in pro- portion to the census or enumeration hereinbefore directed to be made." "The powers not delegated to the United States by the Consti- tution nor prohibited by it to the States, are reserved to the States respectively, or to the people." With these provisions in force as fundamental law, Congress passed, July 13th, 1866,^ an act, the second clause of the 9th section of which enacts: "That every National banking association, State bank, or State banking association, shall pay a tax of ten per centum on the amount of notes of any person. State bank, or State banking asso- ciation, used for circulation and paid out by them after the 1st day of August, 1866, and such tax shall be assessed and paid in such manner a« shall be prescribed by the commissioner of internal revenue." Under this act a tax of ten per cent, was assessed upon the Veazie Bank, for its bank notes issued for circulation, after the day named in the act. The Veazie Bank was a corporation chartered by the State of Maine, with authority to issue bank notes for circulation and the notes on which the tax imposed by the act was collected, were issued under this authority. There was nothing in the case show- 1 14 Stat, at Large, 146. VEAZIE BANK v. FBNNO. 57 ing that the bant sustained any relation to the State as a financial agent, or that its authority to issue notes was conferred or exer- cised with any special reference to other than private interests. The bank declined to pay the tax, alleging it to be unconstitu- tional, and the collector of internal revenue, one Fenno, was pro- ceeding to make a distraint in order to collect it, with penalty and costs, when, in order to prevent this, the bank paid it under protest. Au unsuccessful claim having been made on the com- missioner of internal revenue for reimbursement, suit was brought by the bank against the collector, in the court below. The case was presented to that court upon an agreed statement of facts, and, upon a prayer for instructions to the jury, the judges found themselves opposed in opinion on three questions, the first of which — ^the two others differing from it in form only, and not needing to be recited — ^was this: "Whether ..the second clause of the 9th section of the act of Congress of the 13th of July, 1866, under which the tax in this case was levied and collected, is a valid and constitutional law." The Chief Justice delivered the opinion of the court. The necessity of adequate provision for the financial exigencies created by the late rebellion, suggested to the administrative and legislative departments of the government important changes in the systems of currency and taxation which had hitherto prevailed. These changes, more or less distinctly shown in administrative recommendations, took form and substance in legislative acts. "We have now to consider, within a limited range, those which relate to circulating notes and the taxation of circulation. At the beginning of the rebellion the circulating medium con- sisted almost entirely of bank notes issued by numerous independ- ent corporations variously organized under State legislation, of various degrees of credit, and very unequal resources, administered often with great, and not unfrequently, with little skill, prudence, and integrity. The acts of Congress, then in force, prohibiting the receipt pr disbursement, in the transactions of the National government, of anything except gold and silver, and the laws of the States requiring the redemption of bank notes in coin on demand, prevented the disappearance of gold and silver from cir- culation. There was, then, no national currency except coin; there was no general* regulation of any other by National legisla- 2 See the act of December 27th, the District of Columhia, 10 Stat. 1854, to suppress small notes in at Large, 599. 58 CASES ON CONSTITUTIONAL LAW. tion; and no naticxnal taxation was imposed in any form on the State bank circulation. The first act authorizing the emission of notes by the Treasury Department for circulation was that of July 17th, 1861.^ The notes issued under this act were treasury notes, payable on demand in coin. The amount authorized by it was $50,000,000, and was inereased by the act of February 12th, 1862=' to $60,000,000. On the 31st of December, 1861, the State banks suspended specie payment. Until this time the expenses of the war had been paid in coin, or in the demand notes just referred to; ajid for some time aftei-wards, they continued to be paid in these notes, which, if not redeemed in coin, were received as coin in the payment of duties. Subsequently, on the 25th day of February, 1862,* a new policy became necessary in consequence of the suspension and of the condition of the country, and was adopted. The notes hitherto issued, as has just been stated, were called treasury notes, and were payable on demand in coin. The act now passed authorized the issue of bills for circulation under the name of United States notes, made payable to bearer, but not expressed to be payable on demand, to the amount of $150,000,000; and this amount vras in- creased by subsequent acts to $450,000,000, of which $50,000,000 v/ere to be held in res-erve, and only to be issued for a special pur- pose, and under special directions as to the withdrawal from circu- lation." These notes, until after the close of the war, were always convertible into, or receivable at par for bonds payable in coin, and bearing coin interest, at a rate not less than five per cent, and the acts by which they were authorized, declared them to be law- ful money and a legal tender. This currency, issued directly by the government for the dis- bursement of the war and other expenditures, could not, obviously, be a proper object of taxation. But on the 25th of February, 18G3, the act authorizing Na- tional banking associations'' was passed, in which, for the first time during many years. Congress recognized the expediency and duty of imposing a tax upon currency. By this act a tax of two per cent annually was imposed on the circulation of the associa- tions authorized by it. Soon after, by the act of March 3d, 1863," a similar but lighter tax of one per cent annually was imposed on 2 12 Stat, at Large, 259. Act of March 3d, 1863 lb 710 »Ib., 338. 8 Act of March 3d, 1863' 12 lb * lb., 345. 670. e Act of July 11th, 1862, lb., 532; ^ lb., 712. VEAZIE BANK v. FBNNO. 59 the circulation of State banks in certain proportions to their cap- ital, and of two per cent, on the excess; and the tax on the Na- tional associations was reduced to the same rates. Both acts also imposed taxes on capital and deposits, which need not be noticed here. At a later date, by the act of June 3d, 1864,^ which was substi- tuted for the act of February 25th, 1863, authorizing National banking associations, the rate of tax on circulation was continued and applied to the whole amount of it, and the shares of their stockholders were also subjected to taxation by the States; and a few days afterwards^ by the act of June 30th, 1864,* to provide ways and means for the support of the government, the tax on the circulation of the State banks was also continued at the same annual rate of one per cent., as before, but payment was required in monthly installmaits of one-twelfth of one per cent., with monthly reports from each State bank of the amount in circulation. It can hardly be doubted that the object of this provision was to inform the proper authorities of the exact amount of paper money in circulation, with a view to its regulation by law. The first step taken by Congress in that direction was by the act of July 17, 1863,^° prohibiting the issue and circulation of notes under one dollar by any person or corporation. The act just re- ferred to was the next, and it was followed some months later by the act of March 3d, 1865, amendatory of the prior internal rev- enue acts, the sixth section of which provides, "that every National banking association. State bank, or State banking association, shall pay a tax of ten per centum on the amount of the notes of any State bank, or State banking association, paid out by them after the 1st day of July, 1866." The same provision was re-enacted, with a more extended appli- cation, on the 13th of July, 1866, in these words: "Every Na- tional banking association. State bank, or State banking associa- tion, shall pay a tax of ten per centum on the amount of notes of any person. State bank, or State banking association used for cir- culation, and paid out by them after the first day of August, 1866; and such tax shall be assessed and paid in such manner as shall be prescribed by the Commissioner of Internal Eevenue."^^ The constitutionality of this last provision is now drawn in ques- tion, and this brief statement of the recent legislation of Congress 8 13 lb.. 111. " 13 lb., 484. » lb., 277. 12 14 lb., 146. 10 Act of March 3d, 1863, 12 lb., 592. 60 CASES ON CONSTITUTIONAL LAW. has been made for the purpose of placing in a clear light its scope and bearing, especially as developed in the provisions just cited. It will be seen that when the policy of taxing bank circulation was first adopted in 1863, Congress was inclined to discriminate for, rather than against, the circulation of the State banks; but that when the country had been sufficiently furnished with a Na- tional currency by the issues of United States notes and of National bank notes, the discrimination was turned, and very decidedly turned, in the opposite direction. The general question now before us is, whether or not the tax of ten per cent., imposed on State banks or National banks paying out the notes of individuals or State banks used for circulation, is repugnant to the Constitution of the United States. In support of the position that the act of Congress, so far as it provides for the levy and collection of this tax, is repugnant to the Constitution, two propositions have been argued with much force and earnestness. The first is that the tax in question is a direct tax, and has not been apportioned among the States agreeably to the Constitution. The second is that the act imposing the tax impairs a franchise granted by the State, and that Congress has no power to pass any law with that intent or effect. The first of these propositions will be first examined. . . . Much diversity of opinion has always prevailed upon the ques- tion, what are direct taxes? Attempts to answer it by reference to the definitions of political economists have been frequently made, biit without satisfactory results. The enumeration of the different kinds of taxes which Congress was authorized to impose was proba- bly made with little reference to their speculations. . . . We are obliged therefore to resort to historical evidence, and to seek the meaning of the words in the use and in the opinion of those whose relations to the government, and means of knowledge, war- ranted them in speaking with authority. And considered in this light, the meaning and application of the rule, as to direct taxes, appears to us quite clear. It is, as we think, distinctly shown in evei-y act of Congress on the subject. In each of these acts, a gross sum was laid upon the United States, and the total amount was apportioned to the several States, according to their respective numbers of inhabitants, as ascertained by the last preceding census. Having been apportioned, pro- vision was made for the imposition of the tax upon the subjects specified in the act, fixing its total sum. ... In each instance, the total sum was apportioned among the States, by the constitu- VEAZIE BANK T. FENNO. 61 tional rule, and was assessed at prescribed rates, on the subjects of the tax. These subjects, in 1798,^ 1813,=' 1815,= 1816,* were lands, improvements, dwelling-houses, and slaves; and in 1861, lancls^ improvements, and dwelling-houses only. Under the act of 1798, slaves were assessed at fifty cents on each; under the other acts, according to valuation by assessors. This review shows that per- sonal property, contracts, occupations, and the like, have never been regarded by Congress as proper subjects of direct tax. . . . [After a discussion of Hylton v. U. S., the court continues:] It may be safely assumed, therefore, as the unanimous judgment of the court, that a tax on carriages is not a direct tax. And it may further be taken as established upon the testimony of Pater- son, that the words direct taxes, as used in the Constitution, com- prehended only capitation taxes, and taxes on land, and perhaps taxes on personal property by general valuation and assessment of the various descriptions possessed within the several States. It follows necessarily that the power to tax without apportion- ment extends to all other objects. Taxes on other objects are in- cluded under the heads of taxes not direct, duties, imposts, and excises, and must be laid and collected by the rule of uniformity. The tax under consideration is a tax on bank circulation, and may very well be classed under the head of duties. Certainly it is not, in the sense of the Constitution, a direct tax. It may be said to come within the same category of taxation as the tax on incomes of insurance companies, which this court, at the last term, in the case of Pacific Insurance Company v. Soule,^ held not to be a direct tax. Is it, then, a tax on a franchise granted by a State, which Con- gress, upon any principle exempting the reserved powers of the States from impairment by taxation, must be held to have no authority to lay and collect? We do not say that there may not be such a tax. It may be admitted that the reserved rights of the States, such as the right to pass laws, to give effect to laws through executive action, to administer justice through the courts, and to employ all necessary agencies for legitimate pur- poses of State government, are not proper subjects of the taxing power of Congress. But it cannot be admitted that franchises granted by a State are necessarily exempt from taxation; for franchises are property, often very valuable and productive prop- 1 Act of July 9th, 1798, 1 Stat, at » Id., 166. Large, 586. * Id., 255. 2 Act of July 22d, 1813, 3 lb., 26. s 7 Wallace, 434. 63 CASES ON CONSTITUTIONAL LAW. erty; and when not conferred for the purpose of giving effect tp some reserved power of a State, seem to be as properly objects of taxation as any other property, But in the case before us the object of taxation is not the fraji- chise of the bank, but property created, or contracts made and issued under the franchise, or power to issue bank bills. A railroad company, in the exercise of its corporate franchises, issues freight receipts, bills of lading, and passenger tickets; and it cannot be doubted that the organization of railroads is quite as important to the State as the organization of banks. But it will hardly be ques- tioned that these contracts of the company are objects of taxation within the powers of Congress, and not exempted by any relation to the State which granted the charter of the railroad. And it seems difficult to distinguish the taxation of notes issued for cir- culation from the taxation of these railroad contracts. Both de- scriptions of contracts are means of profit to the corporations which issue them; and both, as we think, may properly be made contributory to the public revenue. It is insisted, however, that the tax in the case before us is ex- cessive, and so excessive as to indicate a purpose on the part of Congress to destroy the franchise of the bank, and is, therefore, beyond the constitutional power of Congress. The first answer to this is that the judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged pov/ers. The power to tax may be exercised oppressively upon persons, but the responsibility of the legislature is not to the courts, but to the people by whom its members are elected. So if a particular tax bears heavily upon a corporation, or a class of corporations, it cannot, for that reason only, be pronounced contrary to the Constitution. But there is another answer which vindicates equally the wisdom and the power of Congress. It cannot be doubted that under the Constitution the jiower to provide a circulation of coin is given to Congress. And it is set- tled by the uniform practice of the government and by repeated decisions, that Congress may constitutionally authorize the emis- sion of biUs of credit. It is not important here, to decide whether the quality of legal tender, in payment of debts, can be constitu- tionally imparted to these bills; it is enough to say, that there can be no question of the power of the government to emit them; to make them receivable in payment of debts to itself; to fit them for use by those who see fit to use them in all the transactions of com- merce; to provide for their redemption; to make them a currency. VEAZIE BANK V. FENNO. fiS uniform in value and description, and convenient and useful for circulation. These powers, until recently, were only partially and occasionally exercised. Lately, however, they have been called into full activity, and Congress has undertaken to supply a cur- rency for the entire country. The methods adopted for the supply of this currency were briefly explained in the first part of this opinion. It now consists of coin, of United States notes, and of the notes of the National banks. Both descriptions of notes may be properly described as bills of credit, for both are furnished by the government; both are issued on the credit of the government; and the government, is responsi- ble for the redemption of both; primarily as to the first descrip- tion, and immediately upon default of the bank, as to the second. When these bills shall be made convertible into coin, at the will of the holder, this currency wiU, perhaps, satisfy the wants of the comniunity, in respect to a circulating medium, as perfectly as any mixed currency that can be devised. Having thus, in the exercise of undisputed constitutional powers, undertaken to provide a currency for the whole country, it cannot be questioned that Congress may, constitutionally, secure the beur efit of it to the people by appropriate legislation. To this end, Con- gress has denied the quality of legal tender to foreign coins, and has provided by law against the imposition of counterfeit and base coin on the community. To the same end. Congress may restrain, by suitable enactments, the circulation as money of any notes not igsTjed under its own authority. Without this power, indeed, its attempts to secure a sound and uniform currency for the country must be futile. Viewed in this light, as well as in the other light of a duty on contracts or property, we cannot doubt the constitutionality of the tax under cou'sideration. The three questions certified from the Circuit Court of the District of Maine must, therefore, be an- swered Affirmatively. [Mb Justice Nelson rendered a dissenting opinion, in which Justice Davis concurred.] 64 CASES ON CONSTITUTIONAL LAW. THE COLLECTOE v. DAY. 11 Wallace, 113. Decided 1870. Eeeoe to the Circuit Court for the District of Massachusetts. [The case grew out of an attempt of a collector of the internal revenue of the United States to collect a tax on the salary of a judge of the Staite of Massachusetts levied in accordance with certain acts of Congress passed in 1864, '65, '66, and '67.] Me. Justice Nelson delivered the opinion of the court. The case presents the question whether or not it is competent for Congress, under the Constitution of the United States, to im- pose a tax upon the salary of a judicial officer of a State? In Dobbins v. The Commissioners of Erie County,^ it was de- cided that it was not competent for the legislature of a State to levy a tax upon the salary or emoluments of an officer of the United States. The decision was placed mainly upon the ground that the officer was a means or instrumentality employed for carry- ing into effect some of the legitimate powers of the government, which could not be interfered with by taxation or otherwise by the States, and that the salary or compensation for the service of the officer was inseparably connected with the office; that if the officer, as such was exempt, the salary assigned for his support or main- tenance while holding the office was also, for like reasons, equally exempt. The cases of McCulloch v. Maryland,^ and Weston v. Charles- ton,^ were referred to as settling the principle that governed the case, namely, "that the State governments cannot lay a tax upon the constitutional means employed by the government of the Union to execute its constitutional powers." . . , [Here follow cita- tions from these cases.] It is conceded in the ease of McCulloch v. Maryland, that the power of taxation by the States was not abridged by the grant of a similar power to the government of the Union; that it was re- tained by the States, and that the power is to be concurrently exercised by the two governments; and also that there is no ex- press constitutional prohibition upon the States against taxing the means or instrumentalities of the general government. But it was 1 le Peters, 435. s 2 Peters, 449. 2 4 Wheaton, 316. THE COLLECTOR v. DAY. 65 held, and we agree properly held, to be prohibited by necessary implication; otherwise, the States might impose taxation to an extent that would impair, if not wholly defeat, the operations of the Federal authorities when acting in their appropriate sphere. These views, we think, abundantly establish the soundness of the decision of the case of Dobbins v. The Commissioners of Erie, which, determined that the States were prohibited, upon a proper construction of the Constitution, from taxing the salary or emolu- ments of an officer of the government of the United States. And we shall now proceed to show that, upon the same construction of that instrument, and for like reasons, that government is prohib- ited from taxing the salary of the judicial officer of a State. It is a familiar rule of construction of the Constitution of the Union, that the sovereign powere vested in the State governments by their respective constitutions remained unaltered and unim- paired, except so far as they were granted to the government of the United States. That the intention of the framers of the Consti- tution in this respect might not be misunderstood, this rule of interpretation is expressly declared in the Tenth Article of the amendments, namely: "The powers not delegated to the United States are reserved to the States respectively, or, to the people." The government of the United States, therefore, can claim no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. The general government, and the States, although both exist within the same territorial limits, are separate and distinct sover- eignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the Tenth Amendment, "reserved," are as independent of the general government as that government within its sphere Is independent of the States. The relations existing between the two governments are well stated by the present Chief Justice in the case of Lane County v. Oregon, 7 Wallace, 76. "Both the States and the United States," he observed, "existed before the Constitution. The people, through that instrument, established a more perfect union, by substituting a national government, acting with ample powers di- rectly upon the citizens, instead of the Confederate government, which acted with powers greatly restricted, only upon the States. But, in many of the articles of the Constitution, the necessary existence of the States, and within their proper spheres, the inde- 5 66 CASES ON CONSTITUTIONAL LAW. pendent authority of the States, are distinctly recognized. To them nearly the whole charge of interior regulation is committed or left; to them, and to the people, all powers, not expressly dele- gated to the national government, are reserved." Upon looking into the Constitution, it will be found that hut few of the articles in that instrument could be carried into practical effect without the existence of the States. Two of the great departments of the government, the executive and legislative, depend upon the exercise of the powers, or upon the people of the States. The Constitution guarantees to the States a republican form of government, and protects each against invasion or 'domestic violence. Such being the separate and inde- pendent condition of the States in our complex system, as recog- nized by the Constitution, and the existence of which is so indis- pensable, that, without them, the general government itself would disappear from the family of nations, it would seem to follow, as a reasonable, if not a necessary consequence, that the means and instrumentalities employed for carrying on the operations of their governments, for preserving their existence, and fulfilling the high and responsible duties assigned to them in the Constitution, should be left free and unimpaired, should not be liable to be crippled, much less defeated, by the taxing power of another government, which power acknowledges no limits but the will of the legislative body imposing the tax. And, more especially, those means and instrumentalities which are the creation of their sovereign and re- served rights, one of which is the establishment of the Judicial department, and the appointment of oiEeers to administer their laws. Without this power, and the exercise of it, we risk nothing in saying that no one of the States under the form of government guaranteed by the Constitution could long preserve its existence. A despotic government might. We have said that one of the reserved powers was that to establish a judicial department; it would have been more accurate, and in accordance with the exist- ing state of things at the time, to have said the power to maintain a judicial department. All of the thirteen States were in the pos- session of this power, and had exercised it at the adoption of the Constitution; and it is not pretended that any grant of it to the general government is found in that instrument. It is, therefore, one of the. sovereign powers vested in the States by their constitu- tions, which remained unaltered and unimpaired, and in respect to which ihe State is as independent of the general governm.Gnt as that government is independent of the States. The supremacy of the general government, therefore, so much THE COLLECTOR V. DAY. 67 relied on in the argument of the counsel for the plaintifE in error, in respect to the question before us, cannot be maintained. The two governments are upon an equality, and the question is whether the power "to lay and collect taxes" enables the general govern- ment to tax the salary of a judicial officer of the State, which officer is a means or instrumentality employed to carry into exe- cution one of its most important functions, the administration of the laws, and which concerns the exercise of a right reserved to the States? We do not say the mere circumstance of the establishment of the judicial department, and the appointment of officers to admin- ister the laws, being among the reserved powers of the State, dis- ables the general government from levying the tax, as that de- pends upon the express power "to lay and collect taxes," but it shows that it is an original inherent power never parted with, and, in respect to which, the supremacy of that government does not exist, and is of no importance in determining the question; and further, that being an original and reserved power, and the judicial officers appointed under it being a means or instrumentality employed to carry it into effect, the right and necessity of its unim- paired exercise, and the exemption of the officer from taxation by the general government stand upon as solid a ground, and are maintained by principles and reasons as cogent, as those which led to the exemption of the Federal officer in Dobbins v. The Com- misisoners of Erie from taxation by the State; for, in this respect, that is, in respect to the reserved powers, the State is as sovereign and independent as the general government. And if the means and instrumentalities employed by that government to carry into operation the powers granted to it are, necessarily, and, for the sake of self-preservation, exempt from taxation by the States, why are not those of the States depending upon their reserved powers, for like reasons, equally exempt from Federal taxation? Their unimpaired existence in the one case is as essential as in the other. It is admitted that there is no express provision in the Constitu- tion that prohibits the general government from taxing the means and instrumentalities of the States, nor is there any prohibiting the States from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-preservation; as any government, whose means employed in conducting its operations, if subject to the control of another and distinct gov- ernment can exist only at the mercy of that government. Of what avail are these means if another power may tax them at discretion? 68 CASES ON CONSTITUTIONAL LAW. But we are referred to the Veazie Bank v. Fenno, 8 Wallace, 533, in support of this power of taxation. That case furnishes a strong illustration of the position taken by the Chief Justice in McCuUoch y. Maryland, namely, "That the power to tax involves the power to destroy." The power involved was one which had been exercised by the States since the foundation of the government, and had been, after the lapse of three-quarters of a century, annihilated from excessive taxation by the general government, just as the judicial office in the present case might be, if subject at all to taxation by that gov- ernment. But, notwithstanding the sanction of this taxation by a majority of the court, it is conceded, in the opinion, that "the reserved rights of the States, such as the right to pass laws; to give effect to laws through executive action; to administer justice through the courts, and to employ all necessary agencies for legiti- mate purposes of State government, are not proper subjects of the taxing power of Congress." This concession covers the ease be- fore us, and adds the authority of this court in support of the doe- trine which we have endeavored to maintain. Judgment affirmed. Me. Justice Beadlet, dissenting. I dissent from the opinion of the court in this case, because it seems to me that the general government has the same power of taxing the income of officers of the State governments as it has of taxing that of its own officers. It is the common government of all alike; and every citizen is presumed to trust his own govern- ment in the matter of taxation. No man ceases to be a citizen of the United States by being an officer under the State government. I cannot accede to the doctrine that the general government is to be regarded as in any sense foreign or antagonistic to the State governments, their officers, or people; nor can I agree that a pre- sumption can be admitted that the general government will act in a manner hostile to the existence or functions of the State gov- ernments, which are constituent parts of the system or body politic forming the basis on which the general government is founded. The taxation by the State governments of the instruments em- ployed by the general government in the exercise of its powers, is a very different thing. Such taxation involves an interference with the powers of a government in which other States and their citizens are equally interested with the State which imposes the taxation. In my judgment, the limitation of the power of taxation in the general government, which the present decision establishes, will be found very difficult to control. Where are we to stop in STATE TONNAGE TAX CASES 69 enumerating the functions of the State governments which will be interfered with by Federal taxation? If a State incorporate a railroad to carry out its purposes of internal improvement, or a bank to aid its financial arrangements, reserving, perhaps, a per- centage on the stock or profits, for the supply of its own treasury, will the bonds or stock of such an institution be free from Federal taxation? How can we now tell what the effect of this decision will be? I, cannot but regard it as founded on a fallacy, and that it will lead to mischievous consequences. I am as much opposed as any one can be to any interference by the general government with the Just powers of the State governments. But no concession of any of the just powers of the general government can easily be recalled. I, therefore, consider it my duty to at least record my dissent when such concession appears to be made. An extended discussion of the subject would answer no useful purpose. STATE TONNAGE TAX CASES. 12 Wallace, 204. Decided 1870. Eeeoe to the Supreme Court of Alabama. These were two cases, which, though coming in different forms, involved one and the same point only; and at the bar — where the counsel directed attention to the principle involved, separated from the accidents of the case — ^were discussed together as pre- senting "precisely the same question." The matter was thus: — The Constitution ordains that "no State shall without the eon- sent of Congress lay any duty of tonnage." With this provision in force as superior law, the State of Alabama passed, on the 23d of February, 1866, a revenue law. By this law, the rate of taxation for property generally was the one-half of one per cent; but "on all steamboats, vessels, and other water crafts plying in the naviga- ble waters of the State," the act levied a tax at "the rate of $1 per ton of the registered tonnage thereof," which it declared should "be assessed and collected at the port where such vessels are regis- tered, if practicable; otherwise at any other port or landing within the State where such vessel may be." The tax collector was directed by the act to demand, in each year, of the person in charge of the vessel, if the taxes had been paid. If a receipt for the same was not produced, he was to immediately 70 CASES ON CONSTITUTIONAL LAW. assess the same according to tonnage, and if sucli tax was not paid on demand he was to seize the boat, &c., and, after notice, proceed and sell the same for payment of the tax, &c., and pay the surplus into the county treasury for the use of the owner. If the vessel could not be seized, the collector was to make the amount of the tax out of the r^al and personal estate of the owner, &c. Under this act, one Lott, tax collector of the State of Alabama, demanded of Cox, the owner of the Dorrance, a steamer of 321 tons, and valued at $5,000, and of several other steamers, certain sums as taxes; and under an act of 1867, identical in language with the one of 1866, just quoted, demanded from the Trade Company of Mobile certain sums on like vessels owned by them; the tax in all the cases being proportioned to the registered tonnage of the vessel. The steamboats, the subject of the tax, were owned exclusively by citizens of the State of Alabama, and were engaged in the navigation of the Alabama, Bigbee, and Mobile rivers, carrying freight and passengers between Mobile and other points of said rivers, altogether within the limits of that State. These waters were navigable from the sea for vessels of "ten or more tons' bur- den;" and it was not denied that there were ports of delivery on them above the highest points to which these boats plied. The owners of the boats were not assessed for any other tax on them than the one here claimed. The boats were enrolled and licensed for the coasting trade. Though running, therefore, between points altogether within the limits of the State of Alabama, the boats were, as it seemed,^ of that sort on which Congress lays a tannage duty. Cox, under compulsion and protest, paid the fax demanded of him, and then brought assumpsit in one of the inferior State courts of Alabama, to get back the money. The Trade Company refused to pay, and filed a bill in a like court, to enjoin the collector from proceeding to collect. The ground of resistance to the tax in each case was this, that being laid in proportion to the tonnage of the vessel, the tax was laid in a form and manner which the State was prohibited by the already quoted section of the Constitution from adopting. The right of the State to lay a tax on vessels according to their value and as property was not denied, but on the contrary conceded.^ Judgment being given in each case against the validily 1 See Act of July 18th, 1866, § 28; fense to the tax was taken, in the 14 Stat, at Large, 185. fact that by the act of Congress 2 It is barely necessary to note admitting Alabama into the Un- that an additional ground of de- ion, it is declared, "that all navi- STATE TONNAGE TAX CASES. 71 of the tax, the matter was taken to the Supreme Court of Ala- bama, which decided that it was lawful. To review that judgment the case was now here. . . . Me. Justice Clifford delivered the judgment of the court, giving an opinion in each of the cases. I. In the first case. — . . . Congress has prescribed the rules of admeasurement and computation for estimating the ton- nage of American ships and vessels.* Viewed in the light of those enactments, the word tonnage, as applied to American ships and vessels, must be held to mean their entire internal cubical capacity, or contents of the ship or vessel expressed in tons of one hundred cubical feet each, as estimated and ascertained by those rules of admeasurement and of com- putation.* Power to tax, with certain exceptions, resides with the States, independent of the Federal government, and the power, when con- fined within its true limits, may be exercised without restraint from any Federal authority. They cannot, however, 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 with- out the consent of Congress they are unconditionally prohibited from exercising any such power. Outside of those prohibitions the power of the States to tax extends to all objects within the sovereign power of the States, except the means and instruments of the Federal government. But ships and vessels owned by indi- viduals and belonging to the commercial marine are regarded as the private property of their owners, and not as the instruments or means of the Federal government, and as such, when viewed as property, they are plainly within the taxing power of the States, as they are not withdrawn from the operation of that power by any express or implied prohibition contained in the Federal Consti- tution." . . . gable waters within the said state s 13 Stat, at Large, 492, 70; lb., shall forever remain public high- 444. ways, free to the citizens of said * Nathan v. Louisiana, 8 How- state, and ot the United States, ard, 82; Howell v. Maryland, 3 without any tax, duty. Impost, or GUI, 14. toll therefor. Imposed by the said b Alexander v. Railroad, 3 Strob- state." This ground not being hart, 598. passed upon by this court, need not be adverted to further. 73 CASES ON CONSTITUTIONAL LAW. Taxes levied by a State upon ships and vessels owned by the citi- zens of the State as property, based on a valuation of the same as property, are not within the prohibition of the Constitution, but it is equally clear and undeniable that taxes levied by a State upon ships and vessels as instruments of commerce and navigation are within that clause of the instrument which prohibits the States from levying 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 the citi- zens of another State, as the prohibition is general, withdrawing altogether from the States the power to lay any duty of tonnage under any circumstances, without the consent of Congress." Annual taxes upon property in ships and vessels are continually laid, and their vahdity was never doubted or called in question, but if the States, without the consent of Congress, tax ships or vessels as instruments of commerce, by a tonnage duty, or indi- rectly by imposing the tax upon the master or crew, they assume a jurisdiction which they do not possess, as every such act falls directly within the prohibition of the Constitution.^ . . . Tonnage duties are as much taxes as duties on imports or exports, and the prohibition of the Constitution extends as fully to such duties if levied by the States as to duties on imports or exports, and for reasons quite as strong as those which induced the framers of the Constitution to withdraw imports and exports from State taxation. Measures, however, scarcely distinguishable from each other may flow from distinct grants of power, as, for example. Congress does not possess the power to regulate the purely internal commerce of the States, but Congress may enroll and license ships and vessels to sail from one port to another in the same State; and it is clear that such ships and vessels are deemed ships and vessels of the United States, and that as such they are entitled to the privileges of ships and vessels employed in the coasting trade.* Steamboats, as well as sailing ships and vessels, are required to be enrolled and licensed for the coasting trade, and the record shows that all the steamboats taxed in this case had conformed to ail the regulations of Congress in that regard, that they were duly enrolled and hcensed for the coasting trade and were engaged in Gibbons v. Ogden, 9 Wheaton, ^ Passenger Cases, 7 Howard, 202; Sennot v. Davenport, 22 How- 447, 481. ard, 238; Foster -v. Davenport, lb., s 1 Stat, at Large, 287; Id., 305; 245; Perry v. Torrence, 8 Ohio, 3 Kent (lltli ed.), 203. 524. STATE TONNAGE TAX CASES. 73 the transportation of passengers and freight within the limits of the State, upon waters navigable from the sea by vessels of ten or more tons burden. Tonnage duties, to a greater or less extent, have been imposed by Congress ever since the Federal government was organized under the Constitution to the present time. They have usually been exacted when the ship or vessel entered the port, and have been collected in a manner not substantially different from that prescribed in the act of the State legislature under consideration. Undisputed authority exists in Congress to impose such duties, and it is not pretended that any consent has ever been given by Congress to the State to exercise any such power. If the tax levied is a duty of tonnage, it is conceded that it is illegal, and it is difficult to see how the concession could be avoided, as the prohibition i^s express, but the attempt is made to show that the legislature, in enacting the law imposing the tax, merely re- ferred to the registered tonnage of the steamboats "as a way or mode to determine and ascertain the tax to be- assessed on the steamboats, and to furnish a rule or rate to govern the assessors in the performance of their duties." Suppose that could be admitted, it would not have much tend- ency to strengthen the argument for the defendant, as the sug- gestion concedes what is obvious from the schedule, that the taxes are levied without any regard to the value of the steamboats. But the proposition involved in the suggestion cannot be admitted, as, by the very terms of the act, the tax is levied on the steamboats wholly irrespective of the value of the vessels as property, and solely and exclusively on the basis of their cubical contents as ascertained by the rules of admeasurement and computation pre- scribed by the act of Congress. By the terms of the law the taxation prescribed is "at the rate of one dollar per ton of the registered tonnage thereof," and the nine- tieth section of the act provides that the tax collector must, each year, demand of the person in charge of the steamboat whether the taxes have been paid, and if the person in charge fails to produce a receipt therefor by a tax collector, authorized to collect such taxes, the collector having the list must at once proceed to assess the same, and if the tax is not paid on demand he must seize such steamboat, &c., and after twenty days' notice, as therein prescribed, shall sell the same, or so much thereof as will pay the taxes and expenses for keeping and costs." 9 Sess. Acts, 1866, pp. 7, 31. 74 CASES ON CONSTITUTIONAL LAW. Legislative enactments, where the language is unambignous, cannot be changed by construction, nor can the language be divested of its plain and obvious meaning. Taxes levied under an enactment which directs that a tax shall be imposed on steam- boats at the rate of one dollar per ton of the registered tonnage thereof, and that the same shall be assessed and collected at the port where such steamboats are registered, cannot, in the judg- ment of this court, be held to be a tax on the steamboat as prop- erty. On the contrary, the tax is just what the language imports, a duty of tonnage, which is made even plainer when it comes to be considered that the steamboats are not to be taxed at all unless they are "plying in the navigable waters of the State," showing to a demonstration that it is as instruments of commerce and not as property that they are required to contribute to the revenues of the State. Such provision is much more clearly within the prohibition in question than the one involved in a recent case decided by this court, in which it was held that a statute of a State enacting that the wardens of a port were entitled to demand and receive, in addition to other fees, the sum of five dollars for every vessel arriv- ing at the port, whether called on to perform any service or not, was both a regulation of commerce and a duty of tonnage, and that as such it was unconstitutional and void.^* Speaking of the same prohibition, the Chief Justice said in that case that those words in their most obvious and general sense de- scribe a duty proportioned to the tonnage of the vessel — a, certain rate on each ton — ^which is exactly what is directed by the provision in the tax act before the court, but he added that it seems plain, if the Constitution be_ taken in that restricted sense, it would not fully accomplish the intent of the framers, as the prohibition upon the States against levying duties on imports or exports would be ineffectual if it did not also extend to duties on the ships which serve as the vehicles of conveyance, which 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 upon its whole tonnage, or a sum to be ascertained by comparing the amount of tonnage with the rate of duty." Assume the rule to be as there laid down, and all must agree that "the levy of the tax in question is expressly prohibited, as the schedule shows that it is exactly proportioned to the registered tonnage of the steamboats plying in the navigable waters of the State." ... 10 steamship Co. v. Port Wardefls, 6 "Wallace, 34. STATE TONNAGE TAX CASES. 75 Taxes in aid of the inspection laws of a State, under special cir- cumstances, have been upheld as necessary to promote the inter- ests of commerce and the security of navigation.^^ Laws of that character are upheld as contemplating benefits and advantages to commerce and navigation, and as altogether distinct from imposts and duties on imports and exports and duties of ton- nage. Usage, it is said, has sanctioned such laws where Congress has not legislated, but it is clear that such laws bear no relation to the act in question, as the act under consideration is emphatically an act to raise revenue to replenish the treasury of the State and for no other purpose, and does not contemplate any beneficial service for the steamboats or other vessels subjected to taxation. Beyond question the act is an act to raise revenue without any corresponding or equivalent benefit or advantage to the vessels taxed or to the ship-owners, and consequently it cannot be upheld by virtue of the rules applied in the construction of laws regulating pilot dues and port charges.^'' Attempt was made in the case of Alexander v. Kailroad to show that the form of levying the tax was simply a mode of assessing the vessels as property, but the argument did not prevail, nor can it in this case, as the amount of the tax is measured by the tonnage of the steamboats and not by their value as property. Eeference is made to the case of the Towboat Company v. Bordelon,^* as asserting the opposite rule, but the court is of a different opinion, as the tax in that case was levied, not upon the boat, but upon the capital of the company owning the boat, and the court in delivering their opinion say the capital of the com- pany is property, and the Constitution of the State requires an equal and uniform tax to be imposed upon it with the other prop- erty of the State for the support of government. For these reasons the court is of opinion that the State law levying the taxes in this case is unconstitutional and void, that the judgment of the State Court is erroneous and that it must be reversed, and having come to that conclusion, the court does not find it necessary to determine the other question. Judgment reversed with costs, and the cause remanded for fur- ther proceedings in conformity to the opinion of the court. II. In the Second Case. . . . Power to tax for the sup- port of the State governments exists in the States independently 11 Cooley V. Port Wardens, 12 S. C, 286; Benedict v. Vanderbllt, Howard, 314. 1 Robt. N. Y., 200. 13 State v. Charleston, 4 Bicli., i3 7 Louisiana An., 195. 76 CASES ON CONSTITUTIONAL LAW. of the Federal government, and it may well be admitted that ^7here there is no cession of jurisdiction for the purposes speci- fied in the Constitution, and no restraining compact between the States and the Federal government, the power in the States to tax reaches all the property within the State which is not properly denominated the instruments or means of the Federal govern- ment.^* Concede all that and still the court is of opinion that the tax in this case is a duty of tonnage, and that the law imposing it is plainly unconstitutional and void. Taxes, as the law provides, must be assessed by the assessor in each county on and from the following subjects and at the following rates, to wit: "On all steam- boats, &c., plying in the navigable waters of the State, at the rate of one dollar per ton of the registered tonnage thereof," which must be assessed and collected at the port where such steamboats are registered, &c.^^ Copied as the provision is from the enactment of the previous year, it is obvious that it must receive the same construction, and as the tax is one dollar per ton, it is too plain for argument that the amount of the tax depends upon the carry- ing capacity of the steamboat and not upon her value as property, as the experience of every one shows that a small steamer, new and well built, may be of much greater value than a large one, badly built or in need of extensive repairs. Separate lists are made for the county and school taxes, but the two combined amount exactly to one dollar per ton, as in the levy for the State tax, and the court is of the opinion that the case falls within the same rule as the ease just decided. Evidently the word toimage in commercial designation means the number of tons burden the ship or vessel will carry, as estimated and ascertained by the official admeasurement and com- putation prescribed by the public authority. Eegulations upon the subject are enacted by Parliament in the parent country and by Congi-ess in this country, as appears by several acts of Con- gress.^^ Tonnage, says a writer of experience, has long been an official term intended originally to express the burden that a ship would carry, in order that the various dues and customs which are levied upon shipping might be levied according to the size of the vessel, or rather in proportion to her capability of carry- 1* Nathan v. Louisiana, 8 How- 448 ; Weston v. Oliarlestoii, 2 Pet- ard, 82; McCulIoch. v. Maryland, ers, 467. 4 Wheaton, 429; Society for Sav- is Revised Code, 169. ings V. Coite, 6 Wallace, 684; le 1 Stat, at Large, 305; 13 Id., Brown v. Maryland, 12 Wlieaton, 444. STATE TONNAGE TAX CASES. 'i'i ing burden. Hence the term, aa applied to a ship, has become ahnost synonymous with that of size.^'' Apply that interpreta- tion to the word tonnage as used in the tax act under considera- tion, and it is as clear as anything can be in legislation that the tax imposed by that provision is a tonnage tax, or duty of ton- nage, as the phrase is in the Constitution. State authority to tax ships and vessels, it is supposed by the respondent, extends to all eases where the ship or vessel is not employed in foreign commerce or in commerce between ports or places in different States. He concedes that the States cannot levy a duty of tonnage on ships or vessels if the ship or vessel is employed in foreign commerce or in commerce "among th? States," but he denies that the prohibition extends to ships or vessels employed in commerce between ports and places in the same State, and that is the leading error in the opinion of the Supreme Court of the State. Founded upon that mistake the proposition is that all taxes are taxes on property, although levied on ships and vessels duly enrolled and licensed, if the ship or vessel is not employed in foreign commerce or in commerce among the States. Ships or vessels of ten or more tons burden, duly enrolled and licensed, if engaged in commerce on waters which are navigable by such vessels from the sea, are ships and vessels of the United States entitled to the privileges secured to such vessels by the act for enrolling or licensing ships or vessels to be employed in the coasting trade.^^ Such a rule as that assumed by the respondent would incor- porate into the Constitution an exception which it does not con- tain. Had the prohibition in terms applied only to ships and ves- sels employed in foreign commerce or in commerce among the States, his construction would be right, but courts of justice cannot add any new provision to the fundamental law, and, if not, it seems clear to a demonstration that the construction assumed by the respondent is erroneous. Decree reversed, and the cause remanded for further proceed- ings in conformity to the opinion of this court. 17 Homan's Com. and Nav. Ton- is i Stat, at Large, 205; lb., 287. nage. 78 CASES ON CONSTITUTIONAL LAW. LOAN ASSOCIATION v. TOPEKA. 20 Wallace, 655. Decided 1874. Ebeoe to the Circuit Court for the District of Kansas. The Citizens' Savings and Loan Association of Cleveland brought their action in the court below, against the city of Topeka, on coupons for interest attached to bonds of the city of Topeka. The bonds on their face purported to be payable to the King Wrought-Iron Bridge Manufacturing and Iron-Works Company, of Topeka, to aid and encourage that company in establishing and operating bridge shops in said city of Topeka, under and in pursu- ance of section twenty-six of an act of the legislature of the State of Kansas, entitled "An act to incorporate cities of the second class," approved February 29, 1873; and also of another "Act to authorize cities and counties to issue bonds for the purpose of building bridges, aiding railroads, water-power, or other works of internal improvement," approved March 2, 1872. The city issued one hundred of these bonds for $1,000 each, as a donation (and so it was stated in the declaration), to encourage that company in its design of establishing a manufactory of iron bridges in that city. The declaration also alleged that the interest coupons first due were paid out of a fund raised by taxation for that purpose, and that after this payment the plaintiff became the purchaser of the bonds and the coupons on which suit was brought for value. A demurrer was interposed by the city of Topeka to this declara- tion. The section of the act of February 29, on which the main reli- ance was placed for the authority to issue these bonds, reads as follows: "Section 76. The council shall have power to encourage the establishment of manufactories and such other enterprises as may tend to develop and improve such city, either by direct appro- priation from the general fund or by the issuance of bonds of such city in such amounts as the council may determine; Provided, That no greater amount than one thousand dollars shall be granted for any one purpose, unless a majority of the votes cast at an elec- tion called for that purpose shall authorize the same. The bonds thus issued shall be made payable at any time within twenty years, and bear interest not exceeding ten per cent, per annum." LOAN ASSOCIATION V. TOPBKA. 79 ^ It was conceded that the steps required by this act prerequisite as to issuing the bonds were regular, as were also the other details, and that the language of the statute was sufficient to Justify the action of the city authorities, if the statute was within the consti- tutional competency of the legislature. The single question, therefore, for consideration raised by th^e demurrer was the authority of the legislature of the State of Kansas to enact this part of the statute. The court below denied the authority, placing the denial on two grounds: — Ist. That this part of the statute violated the fifth section of Article XII of the Constitution of the State of Kansas; a sec- tion in these words: — "Section 5. Provision shall be made by general law for the organization of cities, towns, and villages; and their power of tax- ation, assessment, borrowing money, contracting debts, and loan- ing their credit, shall be so restricted as to prevent the abuse of such power." [The argument here was that the section of the act of February 29, 1872, conferriag the power to issue bonds, contained no re- striction as to the amount which the city might issue to aid man- ufacturing enterprises, and that the failure of the legislature to limit and restrict the power so as to prevent abuse, violated the fifth section of Article XII of the Constitution above referred to.] 2d. That the act authorized the towns and other municipalities to which it applied, by issuing bonds or lending its credit, to take the property of the citizen under the guise of taxation to pay these bonds, and use it in aid of the enterprises of others which were not of a public character; that this was a perversion of the right of taxation, which could only be exercised for a public use, to the aid of individual interests and personal pur- poses of profit and gain. The court below accordingly, sustaining the demurrer, gave judgment in favor of the defendant, the city of Topeka, and to its judgment this writ of error was taken. . . . Me. Justice Millee delivered the opinion of the court. Two grounds are taken in the opinion of the circuit judge and in the argument of counsel for defendant, on which it is insisted that the section of the statute of February 29, 1872, on which the main reliance is placed to issue the bonds, is unconstitutional. 80 CASES ON CONSTITUTIONAL LAW. The first of these is, that by section five of article twelre of the Constitution of that State it is declared that provision shall be made by general law for the organization of cities, towns, and villages; and their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, shall be so re- stricted as to prevent the abuse of such power. The argument is that the statute in question is void because it authorizes cities and towns to contract debts, and does not con- tain any restriction on the power so conferred. But whether the statute which confers power to contract debts should always con- tain some limitation or restriction, or whether a general restric- tion applicable to all cases should be passed, and whether in the absence of both the grant of power to contract is wholly void, are questions whose solution we prefer to remit to the State courts, as in this case we find ample reason to sustain the demur- rer on the second ground on which it is argued by counsel and sustained by the Circuit Court. That proposition is that the act authorizes the towns and other municipalities to which it applies, by issuing bonds or loaning their credit, to talie the property of the citizen under the guise of tax- ation to pay these bonds, and use it in aid of the enterprises of others which are not of a public character, thus perverting the right of taxation, which can only be exercised for a public use, to the aid of individual interests and personal purposes of profit and gain. The proposition as thus broadly stated is not new, nor is the question which it raises difficult of solution. If these municipal corporations, which are in fact subdivisions of the State, and which for many reasons are vested with quasi- legislative powers, have a fund or other property out of which they can pay the debts which they contract, without resort to taxation, it may be within the power of the legislature of the State to authorize them to use it in aid of projects strictly private or personal, but which would in a secondary manner contribute to the public good; or where there is property or money vested in a corporation of the kind for a particular use, as public wor- ship or charity, the legislature may pass laws authorizing them to make contracts in reference to this property, and incur debts payable from that source. But such instances are few and exceptional, and the proposi- tion is a very broad one, that debts contracted by municipal cor- porations must be paid, if paid at all, out of taxes which they may lawfully levy, and that all contracts creating debts to be paid LOAN ASSOCIATION V. TOPEKA. 81 in future, not limited to payment from some other source, imply an obligation to pay by taxation. It follows that in this class of cases the right to contract must be limited by the right to tax, and if in the given case, no tax can lawfully be levied to pay the debt, the contract itself is void for want of authority to make it. If this were not so, these corporations could make valid prom- ises, which they have no means of fulfilling, and on which even the legislature that created them can confer no such power. The validity of a contract which can only be fulfilled by a resort to taxation depends on the power to levy the tax for that piirpose.^ It is, therefore, to be inferred that when the legislature of the State authorizes a county or city to contract a debt by bond, it intends to authorize it to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an inference. With these remarks and with the reference to the authorities which support them, we assume that unless the legislature of Kan- sas had the right to authorize the counties and towns in that State to levy taxes to be used in aid of manufacturing enterprises, con- ducted by individuals, or private corporations, for purposes of gain, the law is void, and the bonds issued under it are also void. We proceed to the inquiry whether such a power exists in the legis- lature of the State of Kansas. We have already said the question is not new. The subject of the aid voted to railways by counties and towns has been brought to the attention of the courts of almost every State in the Union. It has been thoroughly discussed and is still the subject of dis- cussion in those courts. It is quite true that a decided prepon- derance of authority is to be found in favor of the proposition that the legislatures of the States, unless restricted by some special provisions of their constitutions, may confer upon these munici- pal bodies the right to take stock in corporations created to build railroads, and to lend their credit to such corporations. Also to levy the necessary taxes on the inhabitants, and on property within their limits subject to general taxation, to enable them to pay the debts thus incurred. But very few of these courts have decided this without a division among the judges of which they 1 Sharpless v. Mayor of Phila- Jay, 60 Maine, 127; Lowell v. delphia, 21 Pennsylvania State, Boston, Massachusetts (MS.); 147, 167; Hanson v. Vernon, 27 Whiting v. Fond du Lac, 25 Wis- lowa, 28; Allen v. Inhabitants of consin, 188. 6 82 CASES ON CONSTITUTIONAL LAW. ■were composed, while others have decided against the existence of the power altogether." In all these cases, however, the decision has turned upon the question whether the taxation hy which this aid was afforded to the building of railroads was for a public purpose. Those who came to the conclusion that it was, held the laws for that purpose valid. Those who could not reach that conclusion held them void. In all the controversy this has been the turning point of the judgments of the courts. And it is safe to say that no court has held debts created in aid of railroad companies, by counties or towns, valid on any other ground than that the purpose for which the taxes were levied was a public use, a purpose or object which it was the right and the duty of State governments to assist by money raised from the people by taxation. The argu- ment in opposition to this power has been, that railroads built by corporations organized mainly for purposes of gain — ^the roads which they built being under their control, aiid not that of the State — ^were private and not public roads, and the tax assessed on the people went to swell the profits of individuals and not to the good of the State, or the benefit of the public, except in a remote and collateral way. On the other hand, it was said that roads, «.anals, bridges, navigable streams, and all other highways had in all times been matter of public concern. That such channels of travel and of the carrying business had always been established, improved, regulated by the State, and tiiat the railroad had not lost this character because constructed by individual enterprise, aggregated into a corporation. We are not prepared to say that the latter view of it is not the true one, especially as there are other characteristics of a public nature conferred on these corporations, such as the power to obtain right of way, their subjection to the laws which govern common carriers, and the like, which seem to justify the proposition. Of the disastrous consequences which have followed its recognition by the courts and which were predicted when it was first estab- lished there can be no doubt. We have referred to this history of the contest over aid to rail- roads by taxation, to show that the strongest advocates for the validity of these laws never placed it on the ground of the un- limited power in the State legislature to tax the people, but con- ceded tliat where the purpose for which the tax was to be issued, 2The State v. Wapello Co., 9 21 Pennsylvaaia State, 147; Whit- Iowa, 308; Hanson v. Vernon, 27 Ing v. Fond du Lac, 25 Wisconsin. Id., 28; SbarjEitess v. Mayor, etc., 188. LOAN ASSOCIATION v. TOPBKA, 83 could no longer be justly claimed to have this public character, but was purely in aid of private or personal objects, the law au- thorizing it was beyond the legislative power, and was an un- authorized invasion of private right.* It must be conceded that there are such rights in every free government beyond the control of the State. A government which recognized no such rights, which held the lives, the liberty, and the property of its citizens subject at all times to the absolute disposi- tion and unlimited control of even the most democratic depository of power, is after all but a despotism. It is true it is a despotism of the many, of the majoriity, if you choose to call it so, but it is none the less a despotism. It may well be doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than by many. The theory of our governments. State and na- tional, is opposed to the deposit of unlimited power anywhere. The executive, the legislative, and the judicial branches of these governments are all of limited and defined powers. There are limitations on such power which grow out of the essential nature of all free governments. Implied reservations of individual rights, without which the social compact could not exist, and which are respected by all governments entitled to the name. No court, for instance, would hesitate to declare void a statute which enacted that A and B, who were husband and wife to each other, should be so no longer, but that A should thereafter be the husband of C, and B the wife of D. Or which should enact that the homestead now owned by A should no longer be his, but should henceforth be the property of B.* Of all the powers conferred upon government that of taxation is most liable to abuse. Given a purpose or object for which tax- ation may be lawfuly used, and the extent of its exercise is in its very nature unlimited. It is true that express limitation on the amount of tax to be levied or the things to be taxed may be im- posed by constitution or statute, but in most instances for which taxes are levied, as the support of government, the prosecution of 3 Olcott V. Supervisors, 16 Wal- * Whiting v. Fond du Lac, 25 lace, 689; People v. Salem, 20 Wisconsin, 188; Cooley on Consti- Michigan, 452; Jenkins v. Andov- tutional Limitations, 129, 175, 487; er, 103 Massachusetts, 94; Dillon Dillon on Municipal Corporations, on Municipal Corporations, § 587; § 587. 2 Redfield's Laws of Railways, 398, rule 2. 84 CASES ON CONSTITUTIONAL LAW. war, the national defense, any limitation is unsafe. The entire resources of the people should in some instances be at the disposal of the government. The power to tax is therefore, the strongest, the most pervad- ing of all the powers of government, reaching directly or indirectly to all classes of the people. It was said by Chief Justice Marshall, in the case of McCuUoch v. The State of Maryland," that the power to tax is the power to destroy. A striking instance of the truth of the proposition is seen in the fact that the existing tax of ten per cent., imposed by the United States on the circulation of all other banks than the National banks, drove out of existence every State bank of circulation within a year or two after its passage. This power can as readily be employed against one class of indi- viduals and in favor of another, so as to ruin the one class and give unlimited wealth and prosperity to the other, if there is no implied limitation of the uses for which the power may be exer- cised. To lay with one hand the power of the government on the prop- erty of the citizen, and with the other to bestow it upon favored individuals to . aid private enterprises and build up private for- tunes, is none the less a robbery because it is done under the forms of law and is called taxation.. This is not legislation. It is a decree undei; legislative forms. Nor is it taxation. A "tax," says Webster's Dictionary, "is a rate or sum of money assessed on the person or property of a citizen by government for the use of the nation or State." "Taxes are burdens or charges imposed by the legislature upon persons or property to raise money for public purposes."' Coulter, J., in Northern Liberties v. St. John's Church,'' says, very forcibly: "I think the common mind has everywhere taken in the understanding that taxes are a public imposition, levied by au- thority of the government for the purpose of carrying on the gov- ernment in all its machinery and operations — ^that they are imposed for a public purpose." We have established, we think, beyond cavil that there can be no lawful tax which is not laid for a public purpose. It may not be easy to draw the line in all cases so as to decide what is a public purpose in this sense and what ia not. 6 4 Wheaton, 431. York, 11 Johnson, 77; Camden v. e Cooley on Constitutional LIml- Allen, 2 Dutcher, 398; Sharpless v. *^ii?^,i*^^- , , „. . ,„, ^^y""" °f Philadelphia, supra; T 13 Pennsylvania State, 104; see Hanson v. Vernon 27 Iowa 47- I '?,i fiq?" M;tfl'"'*?t!ir'' ^^^fil^^- Whiting V. Fond du Lac, 25 Wial 31 Id., 69; Matter of Mayor of New consln, 188. SPRINOBR V. UNITED STATES. 85 It is undoubtedly the duty of the legislature which imposes or authorizes municipalities to impose a tax to see that it is not to be used for purposes of private interest instead of a public use, and the courts can only be justified in interposing when a violation of this principle is clear and the reason for interference cogent. And in deciding whether, in the given case, the object for which the taxes are assessed falls upon the one side or the other of this line, they must be governed mainly by the course and usage of the government, the objects for which taxes have been customarily and by long course of legislation levied, what objects or purposes have been considered necessary to the support and for the proper use of the government, whether State or municipal. Whatever lawfully pertains to this, and is sanctioned by time and the acqui- escence of the people, may well be held to belong to the public use, and proper for the maintenance of good government, though this may not be the only criterion of rightful taxation. But in the case before us, in which the towns are authorized to contribute aid by way of taxation to any class of manufacturers, there is no difficulty in holding that this is not such a public pur- pose as we have been considering. If it be said that a benefit results to the local public of a town by establishing manufactures, the same may be said of any other business or pursuit which em- ploys capital or labor. The merchant, the mechanic, the inn- keeper, the banker, the builder, the steamboat owner are equally promoters of the public good, and equally deserving the aid of the citizens by forced contributions. No line can be drawn in favor of the manufacturer which would not open the coffers of the pub- lie treasury to the importunities of two-thirds of the business men of the city or town. . . . Judgment affirmed. [Me. Justice Cliffoed' delivered a dissenting opinion.] SPEINGEE V. UNITED STATES. 102 U. S., 586. Decided 1880. [Error to the Circuit Court of the United States for the South- em District of Illinois. The facts are suificiently stated in the opinion of the court.] Mb. Justice Svstatne, after stating the facts, delivered the opinion of the court. 86 CASES ON CONSTITUTIONAL LAW, The central and controlling question in this case is whether the tax which was levied on the income, gains, and profits of the plaint- iff in error, as set forth in the record, and by pretended virtue of the acts of Congress and parts of acts therein mentioned, is a direct tax. . . . If it was, not having been laid according to the requirements of the Constitution,, it must be admitted that the laws imposing it, and the proceedings taken under them by the assessor and collector for its imposition and collection, were all void. • Many of the provisions of the Articles of Confederation of 1777 were embodied in the existing organic law. They provided for a common treasury and the mode of supplying it with funds. The latter was by requisitions upon the several States. The delays and difficulties in procuring the compliance of the States, it is known, was one of the causes that led to the adoption of the present Con- stitution. This clause of the articles throws no light on the ques- tion we are called upon to consider. Nor does the journal of the proceedings of the constitutional convention of 1787 contain any- thing of much value relating to the subject. It appears that on the 11th of July, in that year, there was a debate of some warmth involving the topic of slavery. On the day following, Gouverneur Morris, of New York, submitted a propo- sition "that taxation shall be in proportion to representation." It is further recorded in this day's proceedings, that Mr. Morris hav- ing so varied his motion by inserting the word "direct," it passed nem. con., as follows: "Provided always, that direct taxes ought to be proportioned to representation." 2 Madison Papers, by Gil- pin, pp. 1079-1081. On the 24th of the same month, Mr. Morris said that "he hoped the committee would S'trike out the whole clause. . . . He had only meant it as a bridge to assist us over a gulf; having passed the gulf, the bridge may be removed. He thought the principle laid down with so much strictness liable to strong objec- tions." Id. 1197. The gulf was the share of representation claimed by the Southern States on account of their slave popula- tion. But the bridge remained. The builder could not remove it, much as he desired to do so. All parties seem thereafter to have avoided the subject. With one or two immaterial exceptions, not necessary to be noted, it does not appear that it was again ad- verted to in any way. It was silently incorporated into the draft of the Constitution as that instrument was finally adopted. It does not appear that an attempt was made by any one to define the exact meaning of the language employed. SPRINGER V. UNITED STATES. 87 In the twenty-first number of the Federalist, Alexander Ham- ilton, speaking of taxes generally, said: "Those of the direct kind, which principally relate to land and buildings, may admit of a rule of apportionment. Either the value of the land, or the number of the people, may serve as a standard." The thirty-sixth number of that work, by the same author, is devoted to the subject of internal taxes. It is there said, "They may be subdivided into those of the direct and those of the indirect kind." In this con- nection land-taxes and poll-taxes are discussed. The former are commended and the latter are condemned. Nothing is said of any other direct tax. In neither case is there a definition given or at- tempted of the phrase, "direct tax." The very elaborate researches of the plaintiff in error have fur- nished us with nothing from the debates of the State conventions, by whom the Constitution was adopted, which gives us any aid. Hence we may safely assume that no such material exists in that direction, though it is known that Virginia proposed to Congress an amendment relating to the subject, and that Massachusetts, South Carolina, New York, and North Carolina expressed strong disapprobation of the power given to impose such burdens. 1 Tucker's Blackstone, pt. 1, app., 335. Perhaps the two most authoritative persons in the convention touching the Constitution were Hamilton and Madison. The lat- ter, in a letter of May 11, 1794, speaking of the tax which was adjudicated upon in Hylton v. United States (3 Dall., 171), said, "The tax on carriages succeeded in spite of the Constitution by a majority of twenty, the advocates of the principle being reinforced by the adversaries of luxury." 2 Mad. Writings (pub. by Con- gress), p. 14. In another letter, of the 7th of February, 1796, re- ferring to the case of Hylton v. United States, then pending, he remarked: "There never was a question on which my mind was better satisfied, and yet I have very little expectation that it will be viewed in the same light by the court that it is by me." Id., 77. Whence the despondency thus expressed is unexplained. Hamilton left behind him a series of legal briefs, and among them one entitled "Carriage tax." See vol. vii., p. 848, of his works. This paper was evidently prepared with a view to the Hylton case, in which he appeared as one of the counsel for the United States. In it he says: "What is the distinction between direct and indirect taxes? It is a matter of regret that terms so uncertain and vague in so important a point are to be found in the Constitution. We shall seek in vain for any antecedent set- tled legal meaning to the respective terms. There is none. We 88 CASES ON CONSTITUTIONAL LAW. shall be as much at a loss to find any disposition of either whicH can satisfactorily determine the point." There being many car- riages in some of the States, and very few in others, he points out the preposterous consequences if such a tax be laid and collected on the principle of apportionment instead of the rule of uniformity. He insists that if the tax there in question was a direct tax, so would be a tax on ships, according to their tonnage. He suggests that the boundary line between direct and indirect taxes be set- tled by "a. species of arbitration," and that direct taxes be held to be only "capitation or poll taxes, and taxes on lands and buildings, and general assessments, whether on the whole property of indi- viduals or on their whole real or personal estate. All else must, of necessity, be considered as indirect taxes." The tax here in question falls within neither of these categories. It is not a tax on the "whole . . . personal estate" of the in- dividual, but only on his income, gains, and profits during a year, which may have been but a small part of his personal estate, and in most cases would have been so. This classification lends no sup- port to the argument of the plaintifE in error. The Constitution went into operation on the 4th of March, 1789, It is important to look into the legislation of Congress touching the subject since that time. The following summary will suffice for our purpose. We shall refer to the several acts of Congress to be examined, according to their sequence in dates. In all of them the aggregate amount required to be collected was apportioned among the several States. The act of July 14, 1798, c. 75, 1 Stat. 53. This act imposed a tax upon real estate and a capitation tax upon slaves. The act of Aug. 2, 1813, c. 37, 3 Id. 53. By this act the tax was imposed upon real estate and slaves, according to their respect- ive values in money. The act of Jan. 19, 1815, c. 31, Id. 164. This act imposed the tax upon the same descriptions of property, and in like manner as the preceding act. The act of Feb. 37, 1815, c. 60, Id. 316, applied to the District of Columbia the provisions of the act of Jan. 19, 1815. The act of March 5, 1816, c. 34, Id. 355, repealed the two pre- ceding acts, and re-enacted their provisions to enforce the collec- tion of the smaller amount of tax thereby prescribed. The act of Aug. 5, 1861, c. 45, 13 Id. 394, required the tax to be levied wholly on real estate. The act of June 7, 1863, c. 98, Id. 433, and the act of Feb. 6, 1863, c. 31, Id. 640, both relate only to the collection, in insurree- SPRINGER V. UNITED STATES. 89 tionary districts, of the direct tax imposed by the act at Aug. 5, 1861, and need not, therefore, be more particularly noticed. It will thus be seen that whenever the government has imposed a tax which it recognized as a direct tax, it has never been applied to any objects but real estate and slaves. The latter application may be accounted for upon two grounds: 1. In some of the States slaves were regarded as real estate (1 Hurd, Slavery, 339; Veazie Bank v. Fenno, 8 Wall., 533); and, 2. Such an extension of the tax lessened the burden upon the real estate where slavery existed, while the result to the national treasury was the same, whether the slaves were omitted or included. The wishes of the South were, therefore, allowed to prevail. We are not aware that the question of the validity of such a tax was ever presented for adjudication. Slavery having passed away, it cannot hereafter arise. It does not appear that any tax like the one here in question was ever re- garded or treated by Congress as a direct tax. This uniform practical construction of the Constitution touching so important a point, through so long a period, by the legislative and executive departments of the government, though not conclusive, is a con- sideration of great weight. There are four adjudications by this court to be considered. They have an important, if not a conclusive, application to the case in hand. . . . [Here follows a discussion of Hylton v. United States, 3 Dallas, 171.] In Pacific Insurance Co. v. Soule (7 Wall., 433), the taxes in question were upon the receipts of such companies from premiums and assessments, and upon all sums made or added, during the year, to their surplus or contin- gent funds. This court held unanimously that the taxes were not direct taxes, and that they were valid. . . . [Here follows an extract from Veazie Bank v. Fenno, 8 Wallace, 533.] In Scholey V. Eew (23 Wall., 331), the tax involved was a succession tax, im- posed by the acts of Congress of June 30, 1864, and July 13, 1866. It was held that the tax was not a direct tax, and that it was constitutional and valid. In delivering the opinion of the court, Mr. Justice Clifford, after remarking that the tax there in ques- was not a direct tax, said: "Instead of that, it is plainly an excise tax or duty, authorized by sect. 1, art. 8, of the Constitution, which vests the power in Congress to lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defense and general welfare." He said further: "Taxes on houses, lands, and other permanent real estate have always been deemed to be direct taxes, and capitation taxes, by the express words of the Constitution, are within the same category; but it has never 90 CASES ON CONSTITUTIONAL LAW. been decided that any other legal exactions for the support of the Federal government fall within the condition that unless laid in proportion to numbers the assessment is invalid." All these cases are undistinguishable in principle from the case now before us, and they are decisive against the plaintiff in error. The question, what is a direct tax, is one exclusively in Ameri- can jurisprudence. The text-writers of the country are in entire accord upon the subject. Mr. Justice Story says all taxes are usually divided into two classes, — ^those which are direct and those which are indirect, — and that "under the former denomination are included taxes on land or real property, and, under the latter, taxes on consumption." 1 Const., sect. 950. Chancellor Kent, speaiing of the case of Hylton v. United States, says: "The better opinion seemed to be that the direct taxes con- templated by the Constitution were only two, viz., a capitation or poll tax and a tax on land." 1 Com., 257. See also Oooley, Taxation, p. 5, note 2; Pomeroy, Const. Law, 157; Sharswood's Blackstone, 308, note; Eawle, Const., 30; Sergeant, Const., 305. We are not aware that any writer, since Hylton v. United States was decided, has expressed a view of the subject different from that of these authors. Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that in- strument, and taxes on real estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty. Pomeroy, Const. Law, 177; Pacific Insurance Co. v. Soule, and Scholey v. Eew, supra. Against the considerations, in one scale, in favor of these propo- sitions, what has been placed in the other, as a counterpoise? Our answer is, certainly nothing of such weight, in our judgment, as to require any special reply. The numerous citations from the writings of foreign political economists, made by the plaintiff in error, are sufficiently answered by Hamilton in his brief, before referred to. Judgment affirmed. POLLOCK V. FARMERS' LOAN AND TRUST CO. 91 POLLOCK V. FARMEES' LOAN AND TRUST COMPANY. (Rehearing.) HYDE v. CONTINENTAL TRUST COMPANY. (Rehearing.) 158 U. S., 601. Decided 1895. [This was a hill filed hy Charles Pollock, a citizen of the State of Massachusetts, on hehalf of himself and all other stock-holders of the defendant company similarly situated, against the Farmers' Loan and Trust Co., a corporation of the State of New York. The bill alleged that the defendant claimed authority under the provisions of the act of Congress of August 15, 1894, to pay to the United States a tax of two per centum on the net profits of said company, including the income derived from real estate and bonds of the City of New York owned by it. The bill further alleged that such a tax was unconstitutional, null, and void, in that it was a direct tax with respect to the income from real estate, and in that the income from stocks and bonds of the States of the United States and counties and municipalities therein is not subject to the taxing power of Congress. The bill prayed that the provisions known as the income tax incorporated in the act of Con- gress of August 15, 1894, might be adjudged unconstitutional, null, and void, and that the defendants might be restrained from voluntarily complying with such provisions. On April 8, 1895, the Court, one justice being absent, decided: "A tax on the rents or income of real estate is a direct tax, within the meaning of that term as used in the Constitution of the United States. "A tax upon incomes derived from the interest of bonds issued by a municipal corporation is a tax upon the power of the State and its instrumentalities to borrow money, and is consequently repugnant to the Constitution of the United States. "Upon each of the other questions argued at bar, to wit: 1. Whether the void provision as to rent and income from real estate invalidates the whole act? 2. Whether as to the income from personal property as such, the act is unconstitutional, as lay- ing direct taxes? 3. Whether any part of the tax, if not consid- ered as a direct tax, is invalid for want of uniformity on either of the grounds suggested? — ^the Justices who heard the argument axe equally divided, and, therefore, no opinion is expressed." (157 U. S., 429.) Inasmuch as the cases had not been heard by a full court, and 93 CASES ON CONSTITUTIONAL LAW. since the question upon which the court was equally divided still lacked authoritative determination, the appellants were granted a rehearing. The cases were re-argued before the full bench, and on May 20, 1895, the following opinion was rendered.] Mb. Chief Justice Fullek delivered the opinion of the court. Whenever this court is required to pass upon the validity of an act of Congress as tested by the fundamental law enacted by the people, the duty imposed demands in its discharge the utmost de- liberation and care and invokes the deepest sense of responsibility. And this is especially so when the question involves the exercise of a great governmental power and brings into consideration, as vitally affected by the decision, that complex system of govern- ment so sagaciously framed to secure and perpetuate "an inde- structible union composed of indestructible States." We have, therefore, in anxious desire to omit nothing which might in any degree tend to elucidate the questions submitted, and aided by further able arguments embodying the fruits of elaborate research, carefully re-examined these cases, with the re- sult that, while our former conclusions remain unchanged, their scope must be enlarged by the acceptance of their logical conse- quences. The very nature of the constitution, as observed by Chief Justice Marshall in one of his greatest judgments, "requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those ob- jects be deducted from the nature of the objects themselves." "In considering this question, then, we must never forget that it is a Constitution that we are expounding." McCuUoch v. Maryland, 4 Wheat., 316, 407. As heretofore stated, the Constitution divided Federal taxation into two great classes, the class of direct taxes and the class of duties, imposts, and excises and prescribed two rules which qual- ified the grant of power as to each class. The power to lay direct taxes, apportioned among the several States in proportion to their representation in the popular branch of Congress, a representation based on population as ascertained by the census, was plenary and absolute, but to lay direct taxes without apportionment was forbidden. The power to lay duties, imposts, and excises was subject to the qualification that the im- position must be uniform throughout the United States. Our previous decision was confined to the consideration of the validity of the tax on the income from real estate and on the in- come from municipal bonds. The question thus limited, was POLLOCK V. FARMERS' LOAN AND TRUST CO. 93 whether such taxation was direct or not, in the meaning of the Constitution, and the court went no further as to the tax on the incomes from real estate than to hold that it fell within the same class as the source whence the income was derived, that is, that a tax upon the realty and a tax upon the receipts therefrom were alike direct; while as to the income from municipal bonds, that could not be taxed, because of want of power to tax the source, and no reference was made to the nature of the tax being direct or indirect. We are now permitted to broaden the field of inquiry and deter- mine to which of the two great classes a tax upon a person's entire income, whether derived from rents or products or otherwise, of real estate, or from bonds, stocks or other forms of personal prop- erty, belongs; and we are unable to conclude thait the enforced subtraction from the yield of all the owner's real or personal prop- erty, in the manner prescribed, is so different from a tax upon the property itself that ift is not a direct but an indirect tax in the meaning of the Constitution. The words of the Constitution are to be taken in their obvious sense and to have a reasonable construction. In Gibbons v. Ogden, Chief Justice Marshall, with his usual felicity, said: "As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution and the people who adopted it must be understood to have employed words in their natural sense and to have intended what they have said." 9 Wheat., 1, 188. . . . We know of no reason for holding otherwise than that the words "direct taxes" on the one hand, and "duties, imposts, and excises" on the other, were used in the Constitution in their natural and obvious sense, nor, in arriving at what those terms embrace, do we perceive any ground for enlarging them beyond, or narrowing them within, their natural and obvious import at the time the Constitution was framed and ratified. . . . [Here follows a discussion of the views of Hamilton and Madison and of the Hylton case.] What was decided in the Hylton case was, then, that a tax on carriages was an excise, and, therefore, an indirect tax. The con- tention of Mr. Madison in the House was only so far disturbed by it, that the court classified it where he himself would have held it constitutional, and he subsequently as President approved a simi- lar act. 3 Stat., 40. The contention of Mr. Hamilton in the Fed- 94 CASES ON CONSTITUTIONAL LAW. eralist was not disturbed by it in the least. In our judgment, the construction given to the Consititution by the authors of the Fed- eralist (the five numbers contributed by Chief Justice Jay related to the danger from foreign force and influence, and to the treaty- making power) should not and cannot be disregarded. . . . Whatever the speculative views of political economists or rev- enue reformers may be, can it be properly held that the Constitu- tion, taken in its plain and obvious sense, and with due regard to the circumstances attending the formation of the governmenit, au- thorizes a general unapportioned tax on the products of the farm and the rents of real estate, although imposed merely because of ownership and with no possible means of escape from payment, as belonging to a totally different class from that which includes th<_ property from whence the income proceeds? There can be only one answer, unless the constitutional restric- tion is to be treated as utterly illusory and futile, and the object ot its framers defeated. We find it impossible to hold that a funda- mental requisition, deemed so important as to be enforced by two provisions, one 'affirmative and one negative, can be refined away by forced distinctions between that which gives value to property and the property itself. Nor can we conceive any ground why the same reasoning does not apply to capital in personalty held for the purpose of income or ordinarily yielding income, and to the income therefrom. All the real estate of the country, and all its invested personal property, are open to the direct operation of the taxing power if an appor- tionment be made according to the Constitution. The Constitu- tion does not say that no direct tax shall be laid by apportionment on any other property than land; on the contrary, it forbids all unapportioned direct taxes; and we know of no warrant for ex- cepting personal property from the exercise of the power, or any reason why an apportioned direct tax cannot be laid and assessed, as Mr. Gallatin said in his report when Secretary of the Treasury in 1812, "upon the same objects of taxation on which the direct taxes levied under the authority of the State are laid and assessed." Nor are we impressed with the argument that because in the four instances in which the power of direct taxation has been exercised. Congress did not see fit, for reasons of expediency, to levy a tax upon personalty, this amounts to such a practical con- struction of the Constitution that the power did not exist, that we must regard ourselves bound by it. We should regret to be compelled to hold the powers of the general government thus re- POLLOCK V. FARMERS' LOAN AND TRUST CO. 95 etricted, and certainly cannot accede to the idea that the Consti- tution has become weakened by a particular course of inaction under it. The stress of the argument is thrown, however, on the assertion thait an income tax is not a property tax at all; that it is not a real estate tax, nor a crop tax, nor a bond tax; that it is an assess- ment upon the taxpayer on account of his money-spending power as shown by his revenue for the year preceding the assessment; that rents received, crops harvesited, interest collected, have lost all connection with their origin, and although once not taxable have become transmuted in their new form into taxable subject-matter; in other words, that income is taxable irrespecfive of the source whence it is derived. This was the view entertained by Mr. Pitt as expressed in his celebrated speech on introducing his income-tax law of 1799, and he did not hesitate to carry it to its logical conclusion. The Eng- lish loan acts provided that the public dividends should be paid "free of all taxes and charges whatsoever;" but Mr. Pitt success- fully contended that the dividends for the purposes of the income tax were to be considered simply in relation to the recipient as so much income, and that the holder had no reason to complain. And this, said Mr. Gladstone fifty-five years after, was the rational con- struction of the pledge. Financial Statements, 32. . . . We have unanimously held in this case that, so far as this law operates on the receipts from municipal bonds, it cannot be sus- tained, because it is a tax on the power of the States, and on their instrumentalities to borrow money, and consequently repugnant to the Constitution. But if, as contended, the interest when re- ceived has become merely money in the recipient's pocket, and taxable as such without reference to the source from which it came, the question is immaterial whether it should have been originally taxed at all or not. This was admitted by the Attorney General with characteristic candor; and it follows that, if the revenue derived from municipal bonds cannot be taxed because the source cannoit be, the same rule applies to revenue from any other source not subject to the tax; and the lack of power to levy any but an apportioned tax on real estate and personal property equally exists as to the revenue therefrom. Admitting that this act taxes the income of property irrer speotive of its source, still we cannot doubt that such a tax is nec- essarily a direct tax in the meaning of the Constitution. . . . Being direct, and therefore to be laid by apportionment, is there any real difficulty in doing so? Cannot Congress, if the necessity 96 CASES ON CONSTITUTIONAL LAW. exist of raising thirty, forty, or any other number of million dollars for the support of the government, in addition to the revenue from duties, imposts, and excises, apportion the quota of each State upon the basis of the census, and thus advise it of the payment which must be made, and proceed to assess that amount on all the real or personal property and the income of all persons in the State, and collect the same if the State does not in the meantime assume and pay its quota and collect the amount according to i-ts o-wn system and in its own way? Cannot Congress do this as respects either or all these subjects of taxation, and deal with each in such man- ner as might be deemed expedient, as indeed was done in the act of July 14, 1798 (C, 75, 1 Stat., 597)? Inconveniences might possibly attend the levy of an income tax, notwithstanding the listing of receipts, when adjusted, furnishes its own valuation; but that it is apportionable is hardly denied, although it is asserted that it would operate so unequally as to be undesirable. In the disposition of the inquiry whether a general unappor- tioned tax on the income of real and personal property can be sus- tained, under the Constitution, it is apparent that the suggestion that the result of compliance with the fundamental law would lead to the abandonment of that method of taxation altogether, because of the inequalities alleged to necessarily accompany its pursuit could not be allowed to influence the conclusion; but the suggestion not unnaturally invites attention to the contention of appellants' counsel, that the want of uniformity and equality in this act is such as to invalidate it. Figures drawn from the census are given, showing that enormous assets of mutual insurance com- panies; of building associations; of mutual savings banks; large productive property of ecclesiastical oragnizations; are exempted, and it is claimed that the exemptions reach so many hundred millions that the rate of taxation would perhaps have been reduced one-half, if they had not been made. We are not dealing with the act from thaA point of view; but, assuming the data to be sub- stantially reliable, if the sum desired to be raised had been appor- tioned, it may be doubted whether any State, which paid its quota and collected the amount by its own methods, would, or could under its Constitution, have allowed a large part of the property alluded to to escape taxation. If so, a better measure of equality would have been attained than would be otherwise possible, since, according to the argument for the government, the rule of equality is not prescribed by the Constitution as to Federal taxation, and the observance of such a rule as inherent in all just taxation is purely a matter of legislative discretion. PQLLOCK V. FARMERS' LOAN AND TRUST CO. 97 Elaborate argument is made as to the ef&eacy and merits of an income tax in general, as on the one hand, equal and just, and on the other, elastic and certain; not that it is not open to abuse by such deductions and exemptions ds might make taxation under it so ■wanting in uniformity and equality as in substance to amount to deprivation of property without due process of law; not that it is not open to fraud and evasion and is inquisitorial in its methods; but because it is pre-eminently a tax upon the rich, and enables the burden of taxes on consumption and of duties on imports to be sensibly diminished. And it is said that the United States, as "the representative of an indivisible nationality, as a political sov- ereign equal in authority to any other on the face of the globe, to all emergencies, foreign or domestic, and having ait its command for ofEense and defense and for all governmental purposes all the resources of the nation," would be "but a maimed and crippled creation after all," unless it possesses the power to lay a tax on the income of real and personal property throughout the United States without apportionment. The power to tax real and personal property and the income from both, there being an apportionment, is conceded; that such a tax is a direct tax in the meaning of the Constitution has not been, and, in our judgment, cannot be successfully denied; and yet we are thus invited to hesitate in the enforcement of the mandate of the Constitution which prohibits Congress from laying a direct tax on the revenue from property of .the citizen without regard to State lines, and in such manner that the States cannot intervene by payment in regulation of their own resources, lest a govern- ment of delegated powers should be found to be, not less powerful, but less absolute, than the imagination of the advocate had sup- posed. We are not here concerned with the question whether an income tax be or be not desirable, nor whether such a tax would enable the government to diminish taxes on consumption and duties on imports and to enter upon what may be believed to be a reform of its fiscal and commercial system. Questions of that character belong to the controversies of political parties, and cannot be set- tled by judicial decision. In these cases our province is to deter- mine whether this income tax on the revenue from property does or does not belong to the class of direct taxes. If it does, it is, being unapportioned, in violation of the Constitution, and we must so declare. . . . "We have considered -the act only in respect of the tax on income 7 98 CASES ON CONSTITUTIONAL LAW. derived from real estate, and from invested personal property, and have not commented on so much of it as bears on gains or profits from business, privileges, or employments, in view of the instances in which taxation on business, privileges, or employments has as- sumed the guise of an excise tax and been sustained as such. Being of opinion that so much of the sections of this law as laya a tax on income from real and personal property is invalid, we are brought to the question of the effect of that conclusion upon these sections as a whole. It is elementary thait the same statute may be in part constitu- tional and in part unconstitutional, and if the parts are wholly in- dependent of each other, that which is constituifional may stand while that which is unconstitutional will be rejected. And in the case before us there is no question as to the validity of this act, ex- cept sections twenty-seven to thirty-seven, inclusive, which relate to the subject which has been under discussion; and as to them we think that the rule laid down by Chief Justice Shaw in Warren V. Charlestown, 2 Gray, 84, is applicable, that if the difEerent parts "are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and that, if all could not be carried into effect, the legislature would not pass the residue independently, and some parts are un- constitutional, all the provisions which are thus dependent, condi- tional or connected, must fall with them." Or, as the point is put by Mr. Justice Matthews in Poindexter V. Greenhow, 114 U. S., 270, 304: "It is undoubtedly true that there may be cases where one part of a statute may be enforced as constitutional, and an- other be declared inoperative and void, because unconstitutional; but these are cases where the parts are so distinctly separable that each can stand alone, and where the court is able to see, and to declare, that the intention of the legislature was that the part pronounced valid should be enforcable, even though the other . part should fail. To hold otherwise would be to substitute, for the law intended by the legislature, one they may never have been wilHng by itself to enact." And again, as stated by the same emi- nent judge in Spraigue v. Thompson, 118 U. S., 90, 95, where it was urged that certain illegal exceptions in a section of a statute might be disregarded, but that the rest could stand: "The insuper- able difficulty with the application of that principle of construction to the present instance is, that by rejecting the exceptions intended by the legislature of Georgia the statute is made to enact what POLLOCK v. FARMERS' LOAN AND TRUST CO. 99 confessedly the legislature never meant. It confers ■upon the stat- ute a positive operation beyond the legislative intent, and beyond what any one can say it would have enacted in view of the illegality of the exceptions." According to the census, the true valuation of real and per- sonal property in the United States in 1890 was $i65,03r,091,197, of which real estate with improvements thereon made up $39,- 544,544,333. Of course, from the latter must be deducted, in ap- plying these sections, all unproductive property and all property whose net yield does not exceed four thousand dollars; but, even with such deductions, it is evident that the income from realty formed a vital part of the scheme for taxation embodied therein. If that be stricken out, and also the income from all invested personal property, bonds, stocks, investments of all kinds, it is obvious that by far the largest part of the anticipated revenue would be eliminated, and this would leave the burden of the tax to be borne by professions, trades, employments, or vocations; and in that way what was intended as a tax on cajjital would remain in substance a tax on occupations and labor. We cannot believe that such was the intention of Congress. We do not mean to say that such an act laying by apportionment a direct tax on all real estate and personal property, or the income thereof, might not also lay excise taxes on business, privileges, employments, and vocations. But this is not such an act; and the scheme must be considered as a whole. Being invalid as to the greater part, and falling, as the tax would, if any part were held valid, in a direction .which could not have been contemplated except in connection with the taxation considered as an entirety, we are constrained to conclude that sections twenty-seven to thirty-seven, inclusive, of the act which became a law without the signature of the President on August 28, 1894, are wholly inoperative and void. Our conclusions may, therefore, be summed up as follows: First. We adhere to the opinion already announced, that, taxes on real estate being indisputably direct taxes, taxes on the rents or incomes of real estate are equally direct taxes. Second. We are of opinion that taxes on personal property, or on the income of personal property, are likewise direct taxes. Third. The tax imposed by sections twenty-seven to thirty- seven, inclusive, of the act of 1894, so far as it falls on the income of real estate and of personal property, being a direct tax within the meaning of the Constitution, and, therefore, unconstitutional and void because not apportioned according to representation, all 100 CASES ON CONSTITUTIONAL LAW. those sections, constituting one entire scheme of taxation, are nec- essarily invalid. The decrees hereinbefore entered in this court will ie vacated; the decrees below will be reversed, and the cases remanded, with instructions to grant the relief prayed. [Dissenting opinions were delivered by Justices Harlan, Bbown, Jackson, and White.] III. MONEY. CEAIG ET AL. v. THE STATE OP MISSOUEI. 4 Peters, 410. Decided 1830. The case is stated in the opinion of the court. , . . Makshall, C. J., delivered the opinion of the court, Justices Thompson, Johnson, and McLean dissenting. This is a writ of error to a judgment rendered in the court of last resort, in the State of Missouri, afi&rming a judgment ob- tained by the State in one of its inferior courts, against Hiram Craig and others, on a promissory note. . . . The declaration is on a promissory, note, dated on the first day of August, 1822, promising to pay to the State of Missouri, on the 1st day of November, 1822, at the loan office in Chariton, the sum of $199.99, and the two per cent, per annum, the interest ac- cruing on the certificates borrowed from the 1st of October, 1821. This note is obviously given for certificates loaned under the act, "for the establishment of loan offices." That act directs that loans on personal security shall be made of sums less than $200. This note is for $199.99. The act directs that the certificates issued by the State shall carry two per cent, interest from the date, which interest shall be calculated in the amount of the loan. The note promises to repay the sum with the two per cent, interest accruing on the certificates borrowed from the 1st day of October, 1821. It cannot be doubted that the declaration is on a note given in pursuance of the act which has been mentioned. Neither can it be doubted that the plea of non-assumpsit al- lowed the defendants to draw into question at the trial the validity of the consideration on which the note was given. Everything vvhich disaffirms the contract, everything which shows it to be void, may be given in evidence on the general issue in an action of assumpsit. The defendants, therefore, were at liberty to question tiie validity of the consideration which was the foundation of the contract, and the constitutionality of the law in which it orig- inated. . . . 101 102 CASES ON CONSTITUTIONAL LAW. This brings us to the great question in the cause: Is the act of the legislature of Missouri repugnant to the constitution of the United States? The counsel for the plaintiffs in error maintain that it is re- pugnant to the constitution, because its object is the emission of bills of credit, contrary to the express prohibition contained in the tenth section of the first article. The act under the authority of which the certificates loaned to the plaintiffs in error were issued, was passed on the 26th of June, 1821, and is entitled "an act for the establishment of loan^ offices." The provisions that are material to the present inquiry are comprehended in the third, thirteenth, fifteenth, sixteenth, twenty-third, and twentj^-fourth sections of the act, which are in these words: Section the third enacts, "that the auditor of public accounts and treasurer, under the direction of the governor, shall, and they are hereby required to issue certificates, signed by the said auditor and treasurer, to the amount of $200,000, of denominations not exceeding ten dollars, nor less than fifty cents, (to bear such devices as they may deem the most safe,) in the following fomi, to wit: — 'This certificate shall be receivable at the treasury, or any of the loan-of&ces of the State of Missouri, in the discharge of taxes or debts due to the State, for the sum of $ , with interest for the same, at the rate of two per centum per annum from this date, the day of , 182—.' " The thirteenth section declares, "that the certificates of the said loan-offices shall be receivable at the treasury of the State, and by all tax-gatherers and other public officers, in payment of taxes or other moneys now due to the State, or to any county or town therein, and the said certificates shall also be received by all officers, civil and military, in the State, in the discharge of sala- ries and fees of office." The fifteenth section provides, "that the commissioners of the said loan-offices shall have power to make loans of the said cer- tificates, to citizens of this State, residing within their respective districts only, and in each district a proportion shall be loaned to the citizens of each county therein, according to the number thereof," &e. Section sixteenth. "That the said commissioners of each of the said ofiices are further authorized to make loans on personal securities, by them deemed good and suflticient, for sums less than two hundred dollars; which securities shall be jointly and sever- CRAIG ET AL. v. STATE OF MISSOURI. 103 ally bound for the payment of the amount so loaned, with interest thereon," &c. Section twenty-third. "That the general assembly shall, as soon as may be, cause the salt springs and lands attached thereto, given by congress to this State, to be leased out; and it shall always be the fundamental condition in such leases, that the lessee or lessees shall receive the certificates hereby required to be issued, in payment for salt, at a price not exceeding that which may be prescribed by law; and all the proceeds of the said salt springs, the interest accruing to the State, and all estates purchased by officers of the said several offices, under the provisions of this act, and all the debts now due or hereafter to be due to this State, are hereby pledged and constituted a fund for the redemption of the certifi- cates hereby required to be issued, and the faith of the State is hereby also pledged for the same purpose." Section twenty-fourth. "That it shall be the duty of the said auditor and treasurer to withdraw annually from circulation, one- tenth part of the certificates which are hereby required to be issued," &c. The clause in the constitution which this act is supposed to violate is in these words: "No State shall . . . emit bills of credit." What is a bill of credit? What did the constitution mean to forbid? In its enlarged, and perhaps its literal sense, the term "bill of credit" may comprehend any instrument by which a State engages to pay money at a future day; thus including a certificate given for money borrowed. But the language of the constitution itself, and the mischief to be prevented, which we know from the history of our country, equally limits the interpretation of the terms. 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 common lan- guage, denominated "bills of credit." To "emit bilk of credit," conveys to the mind the idea of issuing paper intended to circulate through the community for its ordinary purposes, as money, which paper is redeemable at a future day. This is the sense in which the terms have been always understood. At a very early period of our colonial history, the attempt to supply the want of the precious metals by a paper medium was made to a considerable extent; and the bills emitted for this pur- pose have been frequently denominated bills of credit. During 104 CASES ON CONSTITUTIONAL LAW. the war of our Revolution, we were driven to this expedient; and necessity compelled us to use it to a most fearful extent. The term has acquired an appropriate meaning; and "bills of credit" signify a paper medium, intended to circulate between individuals, and between government and individuals, for the ordinary pur- poses of society. Such a medium has been always liable to con- siderable fluctuation. Its value is continually changing; and these changes, often great and sudden, expose individuals to immense loss, are the sources of ruinous speculations, and destroy all confi- dence between man and man. To cut up this mischief by the roots, a mischief which was felt through the United States, and which deeply affected the interest and prosperity of all, the people declared in their constitution, that no State should emit bills of credit. If the prohibition means anything, if the words are not empty sounds, it must comprehend the emission of any paper medium, by a State government, for the purpose of common cir- culation. What is the character of the certificates issued by authority of the act under consideration? What office are they to perform? Certificates signed by the auditor and treasurer of the State, are to be issued by those officers to the amount of two hundred thou- sand dollars, of denominations not exceeding ten dollars, nor less than fifty cents. The paper purports on its face to be receivable at the treasury, or at any loan office of the State of Missouri, in discharge of taxes or debts due to the State. The law makes them receivable in discharge of all taxes, or debts due to the State, or any county or town therein; and of all salaries and fees of office, to all officers civil and military within the State; and for salt sold by the lessees of the public salt works. It also pledges the faith and funds of the State for their re- demption. It seems impossible to doubt the intention of the legislature in passing this act, or to mistake the character of these certificates, or the office they were to perform. The denominations of the bills, from ten dollars to fifty cents, fitted them for the purpose of or- dinary circulation; and their reception in payment of taxes, and debts to the government and to corporations, and of salaries and fees, would give them currency. They were to be put into circu- lation; that is, emitted by the government. In addition to all these evidences of an intention to make these certificates the or- dinary circulating medium of the country, the law speaks of them in this character; and directs the auditor and treasurer to with- draw annually one-tenth of them from circulation. Had they CRAia ET AL. v. STATE OF MISSOURI. lOS been termed "bills of credit," instead of "certificates," nothing would have been wanting to bring them within the prohibitory- words of the constitution. And can this make any real difference? Is the proposition to be maintained, that the constitution meant to prohibit names and not things? That a very important act, big with great and ruin- ous mischief, which is expressly forbidden by words most appropri- ate for its description, may be performed by the substitution of a name? That the constitution, in one of its most important pro- visions, may be openly evaded by giving a new name to an old thing? We cannot think so. We think the certificates emitted under the authority of this act are as entirely bills of credit as if they had been so denominated in the act itself. But it is contended, that though these certificates should be deemed bills of credit, according to the common acceptation of the term, they are not so in the sense of the constitution; because they are not made a legal tender. The constitution itself furnishes no countenance to this distinc- tion. The prohibition is general. It extends to all bills of credit, not to bills of a particular description. That tribunal must be bold, indeed, which, without the aid of other explanatory words, could venture on this construction. It is the less admissible in this case, because the same clause of the constitution contains a substantive prohibition to the enactment of tender laws. The constitution, therefore, considers the emission of bills of credit, and the enactment of tender laws, as distinct operations, inde- pendent of each other, which may be separately performed. Both are forbidden. To sustain the one, because it is not also the other; to say that bills of credit may be emitted, if they be not made a tender in payment of debts, — is, in effect, to expunge that distinct independent prohibition, and to read the clause as if it had been entirely omitted. We are not at liberty to do this. The history of paper money has been referred to, for the pur- pose of showing that its great mischief consists in being made a tender; and that therefore the general words of the constitution may be restrained to a particular intent. Was it even true, that the evils ef paper money resulted solely from the quality of its being made a tender, this court would not feel itself authorized to disregard the plain meaning of words, in search of a conjectural intent to which we are not conducted by the language of any part of the instrument. But we do not think that the history of our country proves either, that being made a tender in payment of debts is an essential quality of bills 106 CASES ON CONSTITUTIONAL LAW. of credit, or the only mischief resulting from them. It may, indeed, be the most pernicious; but that will not authorize a court to convert a general into a particular prohibition. We learn from Hutchinson's History of Massachusetts, vol. i., p. 403, that bills of credit were emitted for the first time in that colony in 1690. An army returning unexpectedly from an expedi- tion against Canada, which had proved as disastrous as the plan was magnificent, found the government totally unprepared to meet their claims. Bills of credit were resorted to, for relief from this embarrassment. They do not appear to have been made a tender; but they were not on that account the less bills of credit, nor were they absolutely harmless. The emission, however, not being considerable, and the bills being soon redeemed, the experi- ment would have been productive of not much mischief, had it not been followed by repeated emissions to a much larger amount. The subsequent history of Massachusetts abounds with proofs of the evils with which paper money is fraught, whether it be or be not a legal tender. Paper money was also issued in other colonies, both in the North and South and whether made a tender or not, was productive of evils in proportion to the quantity emitted. In the war which commenced in America in 1755, Virginia issued paper money at several successive sessions, under the appellation of treasury notes. This was made a tender. Emissions were afterwards made in 1769, in 1771, and in 1773. These were not made a tender; but they circulated together; were equally bills of credit; and were pro- ductive of the same effects. In 1775 a considerable emission was made for the purposes of the war. The bills were declared to be current but were not made a tender. In 1776 an additional emis- sion was made, and the bills were declared to be a tender. The bills of 1775 and 1776 circulated together; were equally bills of credit; and were productive of the same consequences. Congress emitted bills of credit to a large amount; and did not, perhaps could not, make them a legal tender. This power resided in the States. In May, 1777, the legislature of Virginia passed an act for the first time making the bills of credit issued under the authority of congress a teqder so far as to extinguish interest. It was not until March, 1781, that Virginia passed an act making all the bills of credit which had been emitted by congress, and all of which had been emitted by the State, a legal tender in payment of debts. Yet they were in every sense of the word bills of credit, previous to that time; and were productive of all the consequences of paper money. We cannot then assent to the proposition, that CRAIG ET AL. v. STATE OF MISSOURI. 107 the hiBtory of our country furnishes any just argument in favor of that restricted construction of the constitution, for which the counsel for the defendant in error contends. The certificates for which this note was given, being in truth "bills of credit" in the sense of the constitution, we are brought to the inquiry: — Is the note valid of which they form the con- sideration? It has been long settled, that a promise made in consideration of an act which is forbidden by law is void. It will not be ques- tioned, that an act forbidden by the constitution of the United States, which is the supreme law, is against law. Now the consti- tution forbids a State to "emit bills of credit." The loan of these certificates is the very act which is forbidden. It is not the mak- ing of them while they lie in the loan offices; but the issuing of them, the putting them into circulation, which is the act of emission, the ant that is forbidden by the constitution. The con- sideration of this note is the emission of bills of credit by the State. The very act which constitutes the consideration, is the act of emitting bills of credit, in the mode prescribed by the law of Missouri; which act is prohibited by the constitution of the United States. Cases which we cannot distinguish from this in principle have been decided in state courts of great respectability; and in this court. . . . [Here follow statements of Springfield Bank v. Merrick et al., 14 Mass. Eep., 323; Hunt v. Knickerbocker, 5 Johns., 327, and Patton v. Nicholson, 3 Wheaton, 204.] A majority of the court feels constrained to say that the consid- eration on which the note in this case was given, is against the highest law of the land, and that the note itself is utterly void. In rendering judgment for the plaintiff, the court for the State of Missouri decided in favor of the validity of a law which is repugnant to the constitution of the United States. In the argument, we have been reminded by one side of the dignity of a sovereign State, of the humiliation of her submitting herself to this tribunal, of the dangers which may result from ' inflicting a wound on that dignity; by the other, of the still superior dignity of the people of the United States, who have spoken their will in terms which we cannot misunderstand. To these admonitions, we can only answer: that if the exercise of that jurisdiction which has been imposed upon us by the con- stitution and laws of the United States, shall be calculated to bring on those dangers which have been indicated; or if it shall be in- dispensable to the preservation of the Union, and consequently 108 CASES ON CONSTITUTIONAL LAW. of the independence and liberty of these States; these are con- siderations which address themselves to those departments which may with perfect propriety he influenced by them. This depart- ment can listen only to the mandates of law, and can tread only that path which is marked out by duty. The judgment of the Supreme Court of the State of Missouri for the first judicial district is reversed, and the cause remanded, with directions to enter judgment for the defendants. [Justices Johnsokt, Thompson, and McLean delivered dis- senting opinions.] JOHN BEISCOE AND OTHEES v. THE PEESIDENT AND DIEECTOES OF THE BANK OF THE COMMON- WEALTH OF KENTUCKY. 11 Peters, 257. Decided 1837. The case is stated in the opinion of the court. . . . McLean, J., delivered the opinion of the court. This case is brought before this court, by a writ of error from the court of appeals of the State of Kentucky, under the 25th section of the Judiciary act of 1789.^ An action was commenced by the Bank of the Commonwealth of Kentucky, against the plaintiffs in error, in the Mercer Circuit Court of Kentucky, on a note for $2,048.37, payable to the president and directors of the bank; and the defendants filed two special pleas, in the first of which oyer was prayed of the note on which suit was brought, and they say that the plaint- iff ought not to have, &c., because the note was given on the renewal of a like note, given to the said bank; and they refer to the act establishing the bank, and allege that it never received any part of the capital stock specified in the act; that the bank was authorized to issue bills of credit, on the faith of the State, in violation of the constitution of the United States. That, by -various statutes, the notes issued were made receivable in dis- charge of executions, and if not so received, the collection of the money should be delayed, &e.; and the defendants aver that the note was given to the bank on a loan of its bills, and that the consideration, being illegal, was void. 1 1 Stat. a± t-niro-,, o- BRISCOE ET AL. v. BANK OF KENTUCKT. 109 The second plea presents^ substantially, the same facts. To both the pleas a general demurrer was filed; and the court sus- tained the demurrer, and gave judgment in favor of the bank. This judgment was removed, by appeal, to the court of appeals, which is the highest court of judicature in the State, where the judgment of the circuit court was affirmed; and being brought before this court by writ of error, the question is presented whether the notes issued by the bank are bills of credit, emitted by the State, in violation of the constitution of the United States. This cause is approached, under a full sense of its magnitude. Important as have been the great questions brought before this tribunal for investigation and decision, none have exceeded, if they have equaled, the importance of that which arises in this case. The amount of property involved in the principle is very large; but this amount, however great, could not give to the case the deep interest which is connected with its political aspect. . . . The definition of the terms bills of credit, as used in the con- stitution, is the first requisite in the investigation of this subject. . . . The terms bills of credit in their mercantile sense, com- prehend a great variety of evidence of debt, which circulate in a commercial country. In the early history of banks, it seems their nates were generally denominated bills of credit; but in modern times they have lost that designation; and are now called, either bank bills, or bank notes. But the inhibition of the constitution applies to bills of credit, in a more limited sense. It would be difficult to classify the bills of credit which were issued in the early history of this country. They were all designed to circulate as money, being issued under the laws of the respective colonies, but the forms were various in the different colonies, and often in the same colony. In some cases they were payable with interest, in others with- out interest. Funds arising from certain sources of taxation were pledged for their redemption, in some instances; in others they were issued without such a pledge. They were sometimes made a legal tender, at others not. In some instances, a refusal to receive them operated as a discharge of the debt; in others, a postpone- ment of it. They were sometimes payable on demand; at other times, at some future period. At all times the bills were receivable for taxes, and in payment of debts due to the public; except, perhaps, in some instances, where they had become so depreciated as to be pf little or no value. 110 CASES ON CONSTITUTIONAL LAW. These bills were frequently issued by committees, and sometimes by an officer of the government, or an individual designated for that purpose. The bills of credit emitted by the States, during the Eevolution, and prior to the adoption of the constitution, were not very dis- similar from those which the colonies had been in the practice of- issuing. There were some characteristics which were common to all these bills. They were issued by the colony or State, and on its credit. For in cases where funds were pledged, the bills were to be redeemed at a future period, and gradually as the means of redemption should accumulate. In some instances, congress guaranteed the payment of bills emitted by a State. They were, perhaps, never convertible into gold and silver, im- mediately on their emission; as they were issued to supply the pressing pecuniary wants of the government, their circulating as money was indispensable. The necessity which required their emission precluded the possibility of their immediate redemption. In the case of Craig et al. v. The State of Missouri, 4 Peters, 410, this court was called upon, for the first time, to determine what constituted a bill of credit, within the meaning of the Con- stitution. A majority of the judges in that case, in the language of the Chief Justice, say, that "bills of credit signify a paper medium, intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society.^' A definition so general as this would certainly embrace every description of paper which circulates as money. Two of the dissenting judges, on that occasion, gave a more defi- nite, though, perhaps, a less accurate meaning, of the terms bills of credit. By one of them it was said, "a bill of credit may, therefore, be considered a bill drawn and resting merely on the credit of the drawer, as contradistinguished from a fund constituted or pledged for the payment of the bill." And in the opinion of the other, it is said, "to constitute a bill of credit, within the meaning of the constitution, it must be issued by a State, and its circulation, as money, enforced by statutory provisions. It must contain a promise of payment by the State generally, when no fund has been appropriated to enable the holder to convert it into money. It must be circulated on the credit of the State; not that it will be paid on presentation, but that the State, at some future period, on a time fixed or resting in its own discretion, will provide for the payment." These definitions cover a large class of the bills of credit issued BRISCOE ET AL. v. BANK OP KENTUCKY. Ill and circulated as money, but there are classes which they do not embrace; and it is believed that no definition, short of a descrip- tion of each class, would be entirely free from objection; unless it be in the general terms "used by the venerable and lamented chief justice. The definition, then, which does include all classes of bills of credit emitted by the colonies or States, is a paper issued by the sovereign power, containing a pledge of its faith, and designed to circulate as money. Having arrived at this point, the next inquiry in the case is whether the notes of the Bank of the Commonwealth were bills of credit within the meaning of the constitution. The first section of the charter provides, that the bank shall be established in the name and behalf of the commonwealth of Kentucky, under the direction of a president and twelve directors to be chosen by joint ballot of both houses of the general assembly, &c. . . . [The second section provides for the incorporation of these persons with the usual powers.] In the third section it is declared, that the stock of the bank shall be exclusively the prop- erty of the commonwealth of Kentucky, and that no individual shall own any part of it. The fourth section authorizes the presi- dent and directors to issue notes, &c.; and in the fifth section it is declared, that the capital stock shall be $2,000,000, to be paid as follows: "All moneys hereafter paid into the treasury for the purchase of the vacant land of the commonwealth; all moneys paid into the treasury for the purchase of land warrants; all moneys received for the sale of vacant lands west of the Tennes- see Eiver, and so much of the capital stock owned by the State in the Bank of Kentucky;" and as the treasurer of the State re- ceived these moneys- from time to time, he was required to pay the same into the bank. . . . Certain limitations were im- posed on loans to individuals, and the accommodations of the bank were to be apportioned among the different counties of the State. The president was required to make a report to each session of the legislature. The notes were to be made payable in gold and silver, and were receivable in payment of taxes and other debts due to the State. All mortgages executed to the bank, gave to it a priority. By a supplementary act it was provided that the presi- dent and directors might issue $.3,000,000. In 1831, an act was passed authorizing the treasurer of the State to receive the divi- dends of the bank. The notes issued by the bank were in the usual form of bank notes, in which the Bank of the Commonwealth promised to pay 113 CASES ON CONSTITUTIONAL LAW. to the bearer on demand the sum specified on the face of the note. There is no evidence of any part of the capital having been paid into the bank; and as the pleas, to which the demurrers were filed, aver that no part of the capital was paid, the fact averred is admitted on the record. It is to be regretted that any technical point arising on the pleadings should be relied on in this case, which involves princi- ples and interests of such deep importance. Had the bank pleaded over and stated the amount actually paid into it by the State, under the charter, the ground on which it stands would have been strengthened. . . . On the part of the plaintiffs in error, it is contended, that the provisions in the constitution that "no State shall coin money," "emit bills of credit/' or "malie anything but gold and silver coin a tender in payment of debts," are three distinct powers which are inhibited to the State; and that if the bills of the Bank of the Commonwealth were substantially made a tender, by an act of the legislature of Kentucky, it must be fatal to the action of the bank in this case. . . . But the main grounds on which the counsel for the plaintiffs rely is that the Bank of the Commonwealth, in emitting the bills in question, acted as the agent of the State; and that, conse- quentljr, the bills were issued by the State. That, as a State is prohibited from issuing bills of credit, it cannot do indirectly what it is prohibited from doing directly. That the constitution intended to place the regulation of the currency under the control of the federal government; and that the act of Kentucky is not only in violation of the spirit of the constitution, but repugnant to its letter. These topics have been ably discussed at the bar and in a printed argument on behalf of the plaintiffs. That by the constitution the currency, so far as it is com- posed of gold and silver, is placed under the exclusive control of congress is clear; and it is contended from the inhibition on the States to emit bills of credit, that the paper medium was intended to be made subject to the same power. If this argument be cor- rect, and the position that a State cannot do indirectly what it is prohibited from doing directly be a sound one, then it must fol- low, as a necessary consequence, that all banks incorporated by a State are unconstitutional. And this, in the printed argument, is earnestly maintained, though it is admitted not to be neces- sary to sustain the ground assumed for the plaintiffs. The coun- sel of the plaintiffs, who have argued the case at the bar, do not carry the argument to this extent. BRISCOE BT AL. v. BANK OF KENTUCKY. 113 This doctrine is startling, as it strikes a fatal blow against the State banks, which have a capital of near four hundred millions of dollars, and which supply almost the entire circulating medium of the country. But let us for a moment examine it dispassion- ately. The federal government is one of delegated powers. All powers not delegated to it, or inhibited to the States, are reserved to the States or to the people. A State cannot emit bills of credit; or, in other words, it cannot issue that description of paper to answer the purposes of money, which was denominated, before the adop- tion of the constitution, bills of credit. But a State may grant acts of incorporation for the attainment of those objects which are essential to the interests of society. This power is incident to sovereignty; and there is no limitation in the federal constitution on its exercise by the States, in respect to the incorporation of banks. At the time the constitution was adopted, the Bank of North America, and the Massachusetts Bank, and some others, were in operation. It cannot, therefore, be supposed that the notes of these banks were intended to be inhibited by the constitution, or that they were considered as bills of credit within the meaning of that instrument. In fact, in many of their most distinguishing char- acteristics, they were essentially different from bills of credit, in any of the various forms in which they were issued. If, then, the powers not delegated to the federal government, nor denied to the, States, are retained by the States or the people, and by a fair construction of the terms bills of credit, as used in the constitution, they do not include ordinary bank notes, does it not follow that the power to incorporate banks to issue these notes may be exercised by a State? A uniform course of action, involving the right to the exercise of an important power by the State governments for half a century, and this almost without question, is no unsatisfactory evidence that the power is rightfully exercised. But this inquiry, though embraced in the printed argument, does not belong to the case, and is abandoned at the bar. A State cannot do that which the federal constitution declares it shall not do. It cannot coin money. Here is an act inhibited in terms so precise that they cannot be mistaken. They are sus- ceptible of but one construction. And it is certain that a State cannot incorporate any number of individuals, and authorize them to coin money. Such an act would be as much a violation of the constitution as if the money were coined by an officer of the State, 8 114 CASES ON CONSTITUTIONAL LAW. xmder its authority. The act, being prohibited, cannot be done by a State either directly or indirectly. And the same rule applies as to the emission of bills of credit by a State. The terms used here are less specific than those which relate to coinage. Whilst no one can mistake the latter, there are great differences of opinion as to the construction of the former. If the terms in each base were equally definite and were susceptible of but one construction, there could be no more diiSculty in applying the rule in the one ease than in the other. The weight of the argument is admitted, that a State cannot, by any device that may be adopted, emit bills of credit. But the question arises, what is a bill of credit within the meaning of the constitution? On the answer to this must depend the constitu- tionality or unconstitutionaUty of the act in question. A State can act only through its agents; and it would be absurd to say that any act was not done by a State which was done by its authorized agents. To constitute a bill of credit within the constitution, it must be issued by a State, on the faith of the State, and be designed to circulate as money. It must be a paper which circulates on the credit of the State; and is so received and used in the ordi- nary business of life. The individual or committee who issue the bill must have the power to bind the State; they must act as agents; and of course do not incur any personal responsibility, nor impart, as individ- uals, any credit to the paper. These are the leading characteris- tics of a bill of credit, which a State cannot emit. . . . Were these notes issued by the State? Upon their face, they do not purport to be issued by the State, but by the president and directors of the bank. They promise to pay to bearer on demand the sums stated. Were they issued on the faith of the State? The notes contain no pledge of the faith of the State in any form. They purport to have been issued on the credit of the funds of the bank, and must have been so received in the community. But these funds, it is said, belonged to the State; and the prom- ise to pay on the face of the notes was made by the president and directors as agents of the State. They do not assume to act as agents, and there is no law which authorizes them to bind the State. As in, perhaps, all bank charters, they had the power to issue a -certain amount of notes; but they determined the time and circumstances which should regulate these issues. When -a -State emits bills of credit, the amount to be issued is BRISCOE ET AL. v. BANK OF KENTUCKY. 115 fixed by law, as also for the fund out of which they are to be paid, if any fund be pledged for their redemption; and they are issued on the credit of the State, which in some form appears upon the face of the notes, or by the signature of the person who issues them. As to the funds of the Bank of the Commonwealth, they were, in part only, derived from the State. The capital, it is true, was to be paid by the State; but in making loans, the bank was re- quired to take good securities; and these constituted a fund, to which the holders of the notes could look for payment, and which could be made legally responsible. In this respect the notes of this bank were essentially different from any class of bills of credit which are believed to have been issued. The notes were not payable in gold and silver on demand, but there was a fund, and, in all probability, a sufficient fund, to redeem them. This fund was in possession of the bank, and under the control of the president and directors. But whether the fund was adequate to the redemption of the notes issued or not, is im- material to the present inquiry. It is enough that the fund ex- isted, independent of the State, and was sufficient to give some degree of credit to the paper of the bank. The question is not whether the Bank of the Commonwealth had a large capital or a small one, or whether its notes were in good credit or bad, but whether they were issued by the State, and on the faith and credit of the State. The notes were received in payment of taxes, and in discharge of all debts to the State; and this, aided by the fund arising from notes discounted, with prudent management, under favorable circumstances, might have sustained, and it is believed did sustain to a considerable extent, the credit of the bank. The notes of this bank which are still in circulation are equal in value, it is said, to specie. But there is another quality which distinguished these notes from bills of credit. Every holder of them could not only look to the funds of the bank for payment, but he had in his power the means of enforcing it. The bank could be sued; and the records of this court show that while its paper was depreciated, a suit was prosecuted to judgment against it by a depositor, and who obtained from the bank, it is admitted, the full amount of his judgment in specie. . . . [Here follows a description of bills issued by Maryland and South Carolina.] If the leading properties of the notes of the Bank of the Com- monwealth were essentially different from any of the numerous 116 CASES ON CONSTITUTIONAL LAW. classes of bills of credit, issued by the States or colonies; if they were not emitted by the State, nor upon its credit, but on the credit of the funds of the bank; if they were payable in gold and silver on demand, and the holder could sue the bank; and if to constitute a bill of credit, it must be issued by a State, and on the credit of the State, and the holder could not, by legal means, compel the payment of the bill, how can the character of these two descriptions of paper be considered as identical? They were both circulated as money; but in name, in form, and in sub- stance, they differ. It is insisted that the principles of this case were settled in the suit of Craig et al. t. The State of Missouri. . . . In that case the court decided that the following paper, issued under a legislative act of Missouri, was a bill of credit within the meaning of the constitution: — "This certificate shall be receivable at the treasury, or any of the loan offices of the State of Missouri, in the discharge of taxes or debts due to the States, in the sum of dollars, with interest for the same, at the rate of two per cent, per annum from the date." . . . It is only necessary to compare these certificates with the notes issued by the Bank of the Commonwealth to see that no two things which have any property in common could be more unlike. They both circulated as money, and were receivable on public account; but in every other particular they were essentially dif- ferent. If to constitute a bill of credit either the form or substance of the Missouri certificate is requisite, it is clear that the notes of the Bank of the Commonwealth cannot be called bills of credit. To include both papers under one designation would confound the most important distinctions, not only as to their form and sub- stance, but also as to their origin and efliect. There is no principle decided by the court in the case of Craig V. The State of Missouri which at all conflicts with the views here presented. Indeed the views of the court are sustained and strengthened by contrasting the present case with that one. The State of Kentucky is the exclusive stockholder in the Bank of the Commonwealth: but does this fact change the character of the corporation? Does it make the bank identical with the State? And are the operations of the bank the operations of the State? Is the bank the mere instrument of the sovereignty to effectuate its designs; and is the State responsible for its acts? The answer to these inquiries will be given in the language of this court, used BRISCOE ET AL. v. BANK OF KENTUCKY. 117 in former adjudications. . . . [Here follow extracts from Bank of the United States v. The Planters' Bank, 9 Wheat., 904, and Bank of the Commonwealth of Kentucky v. Wistar, 3 Peters, 431.] These extracts cover almost every material point raised in this investigation. They show that a State, when it becomes a stock- holder in a bank, imparts none of its attributes of sovereignty to the institution; and that this is equally the case, whether it own a whole or a part of the stock of the bank. It is admitted by the counsel for the plaintiffs that a State may become a stockholder in a bank; but they contend that it cannot become the exclusive owner of the stock. They give no rule by which the interest of a State in such an institution shall be grad- uated, nor at what point the exact limit shall be fixed. May a State own one-fourth, one-half, or three-fourths of the stock? If the proper limit be exceeded, does the charter become unconsti- tutional; and is its constitutionality restored if the State recede within the limit? The court are as much at a loss to fix the supposed constitutional boundary of this right as the counsel can possibly be. If the State must stop short of owning the entire stock, the precise point may surely be ascertained. It cannot be supposed that so important a constitutional principle as contended for exists without limitation. If a State may own a part of the stock of a bank, we know of no principle which prevents it from owning the whole. As a stockholder, in the language of this court, above cited, it can exercise no more power in the affairs of the corpora- tion than is expressly given by the incorporating act. It has no more power than any other stockholder to the same extent. This court did not consider that the character of the incorpora- tion was at all affected by the exclusive ownership of the stock by the State. And they say that the case of the Planters' Bank pre- sented stronger ground of defense than the suit against the Bank of the Commonwealth. That in the former the State of Georgia was not only a proprietor but a corporator; and that in the latter the president and directors constituted the corporate body. And yet in the case of the Planters' Bank the court decided the State could only be considered as an ordinary corporator, both as it regarded its powers and responsibilities. If these positions be correct, is there not an end to this con- troversy? If the Bank of the Commonwealth is not the State, nor the agent of the State; if it possess no more power than is given to it in the act of incorporation; and precisely the same as 118 CASES ON CONSTITUTIONAL LAW. if the stock were owned by private individuals, how can it be con- tended that the notes of the bank can be called bills of credit in contradistinction from the notes of other banks? If, in becom- ing an exclusive stockholder in this bank the State imparts to it none of its attributes of sovereignty; if it holds the stock as any other stockholder would hold it, how can it be said to emit bills of credit? Is it not essential to constitute a bill of credit within the constitution that it should be emitted by a State? Under its charter the bank has no power to emit bills which have the impress of the sovereignty or which contain a pledge of its faith. It is a simple corporation, acting within the sphere of its corporate powers, and can no more transcend them than any other banking institution. The State, as a stockholder, bears the same relation to the bank as any other stockholder. The funds of the bank and its property, of every description, are held responsible for the payment of its debts, and may be reached by legal or equitable process. In this respect, it can claim no exemption under the prerogatives of the States. And, if in the course of its operations its notes have depreciated like the notes of other banks under the pressure of circumstances, still it must stand or fall by its charter. In this its powers are defined; and its rights, and the rights of those who give credit to it, are guar- anteed. And even an abuse of its powers, through which its credit has been impaired and the community injured, cannot be considered in this case. "We are of the opinion that the act incorporating the Bank of the Commonwealth was a constitutional exercise of power by the State of Kentucky, and, consequently, that the notes issued by the bank are not bills of credit within the meaning of the federal constitution. The judgment of the court of appeals is, ther&fore, affirmed, with interest and costs. . . . [Me. Justice Thompson delivered a concurring opinion, and Me. Justice Stoey a dissenting one.j HEPBUEN V. GKISWOLD. 8 Wallace, 603. Decided 1870. Error to the Court of Appeals of Kentucky, the case being this: On the 20th of June, 1860, a certain Mrs. Hepburn made, a promissory note, by which she promised to pay to Henry Grifl- HEPBURN V. GRISWOLD. 119 wold on the 30th of February, 1863, eleTen thousand two hun- dred and fifty "dollars." At the time when the note was made, as also at the time when it fell due, there was, confessedly, no lawful money of the United States, or money Which could lawfully be tendered in payment of private debts, but gold and silver coin. Five days after the day when the note by its terms fell due, that is to say, on the 35th of February, 1863, in an exigent crisis of the nation, in which the government was engaged in putting down an, armed rebellion of vast magnitude. Congress passed an act authorizing the issue of $150,000,000 of its own notes,^ and enacted in regard to them, by one clause in the first section of the act, as follows: "And such notes, herein authorized, shall be receivable in pay- ment of all taxes, internal duties, excises, debts, and demands of every kind due to the United States, except duties on imports, and of all claims and demands against the United States of every kind whatsoever, except for interest upon bonds and notes, which shall be paid in coin; and shall also be lawful money and a legal tender in payment of all debts, public and private, within the United States, except duties on imports and interest as aforesaid." The note given by Mrs. Hepburn not being paid at maturity, interest accrued on it. And in March, 1864, suit having been brought on the note in the Louisville Chancery Court, she ten- dered in United States notes issued under the act mentioned $13,730, the amount of principal of the note with the interest accrued to the date of tender, and some costs in satisfaction of the plaintiff's claim. The tender was refused. The notes were then tendered and paid into court; and the chancellor, "resolv- ing all doubts in favor of Congress," declared the tender good and adjudged the debt, interest and costs to be satisfied accordingly. The case was then taken by Griswold to the Court of Errors of Kentucky, which reversed the chancellor's judgment, and remand- ed the case with instructions to enter a contrary judgment. From the judgment of the Court of Errors of Kentucky, the case was brought by Mrs. Hepburn here. . . . The Chief Justice delivered the opinion of the court. The question presented for our determination by the record in this case is, whether or not the payee or assignee of a note, made before the 35th of February, 1863, is obliged by law to 1 For the general form of the notes, see 7 Wallaice, 26. 120 CASES ON CONSTITUTIONAL LAW. accept in payment United States notes, equal in nominal amount to the sum due according to its terms, when tendered by the maker or other party bound to pay it? And this requires, in the first place, a construction of that clause of the first section of the act of Congress passed on that day, which declares the United States notes, the issue of which was authorized by the statute, to be a legal tender in payment of debts. The clause has already received much consideration here, and this court has held that, upon a sound construction, neither taxes imposed by State legislation,^ nor demands upon contracts which stipulate in terms for the delivery of coin or bullion,^ are iiicluded by legis- lative intention under the description of debts public and private. We are now to determine whether this description embraces debts contracted before as well as after the date of the act. It is an established rule for the construction of statutes, that the terms employed by the legislature are not to receive an inter- pretation which conflicts with acknowledged principles of Justice and equity, if another sense, consonant with those principles, can be given to them. But this rule cannot prevail where the intent is clear. Except in the scarcely supposable case where a statute sets at naught the plainest precepts of morality and social obliga- tion, courts must give efEect to the clearly ascertained legislative intent, if not repugnant to the fundamental law ordained in the Constitution. Applying the rule just stated to the act under consideration, there appears to be strong reason for construing the word debts as having reference only to debts contracted subsequent to the enactment of the law. For no one will question that the United States notes, which the act makes a legal tender in payment, are essentially unlike in nature, and, being irredeemable in coin, are necessarily unlike in value, to the lawful money intended by par- ties to contracts for the payment of money made before its pas- sage. The lawful money then in use and made a legal tender in payment, consisted of gold and silver coin. The currency in use under the act, and declared by its terms to be lav/ful money and a legal tender, consists of notes or promises'4^pay impressed upon paper, prepared in convenient form for circulation, and protected against counterfeiting by suitable devices and penalties. The former possess intrinsic value, determined by the weight and fineness of the metal; the latter have no intrinsic value, but a purchasing value, determined by the quantity in circulation, by = Lane County v. Oregon, 7 Wal- s Bronson v. Rodes, 7 Id., 229; lace, 71. Butler v. Horwitz, lb., 258. HEPBURN V. GRISWOLD. 131 general consent to its currency in payments, and by opinion as to tlie probability of redemption in coin. Both derive, in difiEerent degrees, a certain additional value from their adaptation to cir- culation by the form and impress given to them under national authority, and from the acts making them respectively a legal tender. Contracts for the payment of money, made before the act of 1862, had reference to coined money, and could not be discharged, unless by consent, otherwise than by tender of the sum due in coin. Every such contract, therefore, was, in legal import, a con- tract for the payment of coin. There is a well-known law of currency, that notes or promises to pay, unless made conveniently and promptly convertible into coin at the will of the holder, can never, except under unusual and abnormal conditions, be at par in circulation with coin. It is an equally well known law, that depreciation of notes must in- crease with the increase of the quantity put in circulation and the diminution of confidence in the ability or disposition to redeem. Their appreciation follows the reversal of these conditions. No act making them a legal tender can change materially the opera- tion of these laws. Their force has been strikingly exemplified in the history of the United States notes. Beginning with a very slight depreciation when first issued, in March, 1863, they sank in July, 1864, to the rate of two dollars and eighty-five cents for a dollar in gold, and then rose until recently a dollar and twenty cents in paper became equal to a gold dollar. Admitting, then, that prior contracts are within the intention of the act, and assuming that the act is warranted by the Con- stitution, it follows that the holder of a promissory note, made be- fore the act, for a thousand dollars, payable, as we have just seen, according to the law and according to the intent of the parties, in coin, was required, when depreciation reached its lowest point, to accept in payment a thousand note dollars, although with the thousand coin dollars, due under the contract, he could have pur- chased on that day two thousand eight hundred and fifty such dollars. Every paymei^j;, since the passage of the act, of a note of earlier date, has presented similar, though less striking features. Now, it certainly needs no argument to prove that an act, com- pelling acceptance in satisfaction of any other than stipulated pay- ment, alters arbitrarily the terms of the contract, and impairs its obligation, and that the extent of impairment is in the proportion of the inequality of the payment accepted under the constraint of the law to the payment due under the contract. Nor does it 132 CASES ON CONSTITUTIONAL 1well as slaves, may be the subjects of importation and commerce. 6. That the 5th clause of the 9th section of the 1st article of the constitution, which declares that "no preference 'shall be given by any regulation of commerce or revenue to the ports of one State over those of another State; nor shall vessels bound to or from one State, be obliged to enter, clear, or pay duties in an- other," is a limitation upon the power of congress to regulate com- merce for the purpose of producing entire commercial equality 234 CASES ON CONSTITUTIONAL LAW. within the United States, and also a prohibition upon the States to destroy such equality by any legislation prescribing a condition upon which vessels bound from one State, shall enter the ports of another State. 7. That the acts of Massachusetts and New York, so far as they impose a tax upon passengers, are unconstitutional and void, because each of them so far conflicts with the first clause of the eighth section of the first article of the constitution, which en- joins that all duties, imposts, and excises shall be uniform through- out the United States; because the constitutional uniformity en- joined in respect to duties and imposts is as real and obligatory upon the States, in the absence of all legislation by congress, as if the uniformity had been made by the legislation of congress; and that such constitutional uniformity is interfered with and de- stroyed by any State imposing any tax upon the intercourse of persons from State to State, or from foreign countries to the United States. 8. That the power in congress to regulate commerce with for- eign nations and among the several States, includes navigation upon the high seas, and in the bays, harbors, lakes, and navigable waters within the United States, and that any tax by a State in any way aifecting the right of navigation, or subjecting the ex- ercise of the right to a condition, is contrary to the aforesaid grant. 9. That the States of this Union may, in the exercise of their police powers, pass quarantine and health laws, interdicting ves- sels coming from foreign ports, or ports within the United States, from landing passengers and goods, prescribe the places and time for vessels to quarantine, and impose penalties upon persons for violating the same; and that such laws, though affecting com- merce in its transit, are not regulations of commerce prescribing terms upon which merchandise and persons shall be admitted into the ports of the United States, but precautionary regulations to prevent vessels engaged in commerce from introducing disease into the ports to which they are bound; and that the States may, in the exercise of such police power, without any violation of the power in congress to regulate commerce, exact from the owner or consignee of a quarantined vessel, and from the passengers on board of her, such fees as will pay to the State the cost of their detention and of the purification of the vessel, cargo, and apparel of the persons on board. . . . [Chief Justice Taney, with whom Justice Nelson con- curred, and Justices Daniel and Woodbuey delivered dissent- ing opinions.] COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 335 COOLEY T. THE BOARD OP WARDENS OP THE PORT OP PHILADELPHIA. 12 Howard, 299. Decided 1851. The case is stated in the opinion of the court. . , . CuETis, J., delivered the opinion of the court. These eases are brought here by writs of error to the supreme court of the commonwealth of Pennsylvania. They are actions to recover half-pilotage fees under the 29tli section of the act of the legislature of Pennsylvania, passed on the second day of March, 1803. The plaintiff in error alleges that the highest court of the State has decided against a right claimed by him under the constitution of the United States. That right is, to be exempted from the payment of the sums of money, demanded pursuant to the state law above referred to, because that law con- travenes several provisions of the constitution of the United States. The particular section of the State law drawn in question is as follows: "That every ship or vessel arriving from, or bound to any foreign port or place, and every ship or vessel of the burden of seventy-five tons or more, sailing from, or bound to any port not within the River Delaware, shall be obliged to receive a pilot. And it shall be the duty of the master of every such ship or vessel, within thirty-six hours next after the arrival of such ship or vessel at the city of Philadelphia, to make report to the master-warden of the name of such ship or vessel, her draught of water, and the name of the pilot who shall have conducted her to the port. And when any such vessel shall be outward bound, the master of such vessel shall make known to the wardens the name of such vessel, and of the pilot who is to conduct her to the capes, and her draught of water at that time. And it shall be the duty of the wardens to enter every such vessel in a book to be by them kept for that purpose, without fee or reward. And if the master of any ship or vessel shall neglect to make such report, he shall forfeit and pay the sum of $60. And if the master of any such ship or vessel shall refuse or neglect to take a pilot, the master, owner, or consignee of such vessel shall forfeit and pay to the warden afore- said, a sum equal to the half -pilotage of such ship or vessel, to the use of the Society for the Relief, etc., to be recovered as pilotage in the manner hereinafter directed: Provided always, that where it shall appear to the warden that in case of an inward bound vessel. 236 CASES ON CONSTITUTIONAL LAW. a. pilot did not offer before she had reached Eeedy Island; or, in case of an outward bound vessel, that a pilot could not be ob- tained for twenty-four hours after such vessel was ready to de- part, the penalty aforesaid, for not having a pilot, shall not be incurred." This is one section of "An Act to establish a Board of "Wardens for the Port of Philadelphia, and for the Regulation of Pilots and Pilotages, etc.," and the scope of the act is, in con- formity with the title, to regulate the whole subject of the pilotage of that port. We think this particular regulation concerning half -pilotage fees is an appropriate part of a general system of regulations of this subject. Testing it by the practice of commercial States and coun- tries legislating on this subject, we find it has usually been deemed necessary to make similar provisions. Numerous laws of this Idnd are cited in the learned argument of the counsel for the de- fendant in error; and their fitness, as part of a system of pilotage, in many places, may be inferred from their existence in so many different States and countries. Like other laws, they are framed to meet the most usual cases, qum frequentius accidunt; they rest upon the propriety of securing lives and property exposed to the perils of a dangerous navigation, by taking on board a person pe- culiarly sldlled to encounter or avoid them; upon the policy of dis- couraging the commanders of vessels from refusing to receive such persons on board at the proper times and places; and upon the expediency, and even intrinsic justice, of not suffering those who have incurred labor, and expense, and danger, to place themselves in a position to render important sei-vice generally necessary, to go unrewarded, because the master of a particular vessel either rashly refuses their proffered assistance, or, contrary to the gen- eral experience, does not need it. There are many cases, in which an offer to perform, accompanied by present ability to perform, is deemed by law equivalent to performance. The laws of com- mercial States and countries have made an offer of pilotage serv- ice one of those cases; and we cannot pronounce a law which does this to be so far removed from the usual and fit scope of laws for the regulation of pilots and pilotage, as to be deemed, for this cause, a covert attempt to legislate upon another subject under the appearance of legislating on this one. It is urged that the second section of the act of the legislature of Pennsylvania, of the 11th of June, 1833, proves that the State had other objects in view than the regulation of pilotage. That section is as follows: — "And be it further enacted, by the authority aforesaid, that COOLEY V. BOARD OF WARDENS OF PHILADELPHIA. 237 from and after the first day of July next, no health-fee or half- pilotage shall be charged on any yessel engaged in the Pennsyl- vania coal trade." It must be remembered, that the fair obiects of a law imposing half-pilotage when a pilot is not received, may be secured, and at the same time some classes of vessels exempted from such charge. Thus, the very section of the act of 1803, now under consideration, does not apply to coasting vessels of less burden than seventy-five tons, nor to those bound to, or sailing from, a port in the Eiver Delaware. The purpose of the law being to cause masters of such vessels as generally need a pilot, to secure one, and to secure to the pilots a fair remuneration for cruising in search of vessels, or waiting for employment in port, there is an obvious propriety in having reference to the number, size, and nature of employment of vessels frequenting the port; and it will be found, by an ex- amination of the different systems of these regulations, which have from time been made in this and other , countries, that the legislative discretion has been constantly exercised in making dis- criminations, founded on differences both in the character of the trade, and the tonnage of vessels engaged therein. We do not perceive anything in the nature or extent of this particular discrimination in favor of vessels engaged in the coal trade, which would enable us to declare it to be other than a fair exercise of legislative discretion, acting upon the subject of the regulation of the pilotage of this port of Philadelphia, with a view to operate upon the masters of those vessels, who, as a general rule, ought to take a pilot, and with the further view of relieving from the charge of half-pilotage such vessels as from their size, or the nature of their employment, should be exempted from con- tributing to the support of pilots, except so far as they actually receive their services. In our judgment, though this law of 1833 has undoubtedly modified the 29th section of the act of 1803, and both are to be taken together as giving the rule on this subject of half -pilotage, yet this change in the rule has not changed' the nature of the law, nor deprived it of the character and attributes of a law for the regulation of pilotage. Nor do we consider that the appropriation of the sums received under this section of the act, to the use of the society for the relief of distressed and decayed pilots, their widows and children, has any legitimate tendency to impress on it the character of a revenue law. Whether these sums shall go directly to the use of the indi- vidual pilots by whom the service is tendered, or shall form a common fund, to be administered by trustees for the benefit of 238 CASES ON CONSTITUTIONAL LAW. sucli pilots and their families as may stand in peculiar need of it, is a matter resting in legislative discretion, in the proper exercise of which the pilots alone are interested. For these reasons, we cannot yield our assent to the argument that this provision of law is in conflict with the second and third clauses of the tenth section of the first article of the constitution, which prohibit a State, without the assent of congress, from lay- ing any imposts or duties on imports or exports, or tonnage. This provision of the constitution was intended to operate upon sub- jects actually existing and well understood when the constitution was formed. Imposts and duties on imports, exports, and ton- nage were then known to the commerce of the civilized world to be as distinct from fees and charges for pilotage, and from the penalties by which commercial States enforced their pilot-laws, as they were from charges for wharfage or towage, or any other local port-charges for services rendered to vessels or caffgoes; and to declare that such pilot-fees or penalties are embraced within the words imposts or duties on imports, exports, or tonnage, would be to confound things essentially different, and which must have been known to be actually different by those who use this lan- guage. It cannot be denied that a tonnage duty, or an impost on imports or exports, may be levied under the name of pilot dues or penalties; and certainly it is the thing, and not the name, which is to be considered. But, having previously stated that, in this instance, the law complained of does not pass the appropriate line which limits laws for the regulation of pilots and pilotage, the suggestion that this law levies a duty on tonnage or on im- ports or exports is not admissible; and, if so, it also follows that this law is not repugnant to the first clause of the eighth section of the first article of the constitution, which declares that all duties, imposts, and excises shall be uniform throughout the United States; for, if it is not to be deemed a law levying a duty, impost, or excise, the want of uniformity throughout the United States is not objectionable. Indeed, the necessity of conforming regulations of pilotage to the local peculiarities of each port, and the consequent impossibility of having its charges uniform throughout the United States, woidd be sufficient of itself to prove that they could not have been intended to be embraced within this clause of the constitution; for it cannot be supposed uni- formity was required, when it must have been known to be im- practicable. It is further objected that this law is repugnant to the fifth clause of the ninth section of the first article of the constitution. COOLEY V. BOARD OF WARDENS OP PHILADELPHIA. 239 Eamely: "No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of an- other; nor shall vessels, to or from one State, be obliged to enter, clear, or pay duties in another." But, as already stated, pilotage fees are not duties within the meaning of the constitution; and, certainly, Pennsylvania does not give a preference to the port of Philadelphia, by requiring the masters, owners, or consignees of vessels sailing to or from that port, to pay the charges imposed by the twenty-ninth section of the act of 1803. It is an objection to, and not a ground of prefer- ence of a port, that a charge of this kind must be borne by vessels entering it; and, accordingly, the interests of the port require, and generally produce, such alleviations of these charges as its growing commerce from time to time renders consistent with the general policy of the pilot laws. This State, by its act of _ the S'-ith of March, 1851, has essentially modified the law of 1803, and fur- ther exempted many vessels from the charge now in question. Similar changes may be observed in the laws of New York, Massa- chusetts, and other commercial States, and they undoubtedly spring from the conviction that burdens of this kind, instead of operating to give a preference to a port, tend to check its com- merce, and that sound policy requires them to be lessened and re- moved as early as the necessities of the system will allow. In addition to what has been said respecting each of these con- stitutional objections to this law, it may be observed that similar laws have existed and been practised on in the States since the adoption of the federal constitution; that, by the act of the 7th of August, 1789, 1 Stats, at Large, 54, congress declared that all pilots in the bays, inlets, rivers, harbors, and ports of the United States, shall continue to be regulated in conformity with the exist- ing laws of the States, etc.; and that this contemporaneous con- struction of the constitution since acted on with such uniformity in a matter of much public interest and importance, is entitled to great weight, in determining whether such a law is repug- nant to the constitution, as levying a duty not uniform through- out the United States, or, as giving a preference to the ports of one State over those of another, or, as obliging vessels to or from one State to enter, clear, or pay duties in another. Stuart v. Laird, 1 Cranch, 299; Martin v. Hunter, 1 Wheat., 304; Cohens v. The Commonwealth of Virginia, 6 Wheat., 264; Prigg v. The Commonwealth of Pennsylvanina, 16 Pet., 631. The opinion of the court is, that the law now in question is 240 CASES ON CONSTITUTIONAL LAW. not repugnant to either of the above-mentioned clauses of the constitution. It remains to consider the objection that it is repugnant to the third clause of the eighth section of the first article. "The con- gress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes." That the power to regulate commerce includes the regulation of navigation, we consider settled. And when we look to the nature of the service performed by pilots, to the relations which that service and its compensations bear to navigation between the several States, and between the ports of the United States and foreign countries, we are brought to the conclusion, that the regulation of the qualifications of pilots, of the modes and times of offering and rendering their services, of the responsibilities which shall rest upon them, of the powers they shall possess, of the compensation they may demand, and of the penalties by which their rights and duties may be enforced, do constitute regulations of navigation, and consequently of commerce, within the just meaning of this clause of the constitution. The power to regulate navigation is the power to prescribe rules in conformity with which navigation must be carried on. It ex- tends to the persons who conduct it, as well as to the instruments used. Accordingly, the first congress assembled under the con- stitution passed laws, requiring the masters of ships and vessels of the United States to be citizens of the United States, and estab- lished many rules for the government and regulation of officers and seamen. 1 Stats, at Large, 55, 131. These have been from time to time added to and changed, and we are not aware that their validity has been questioned. 'Now, a pilot, so far as respects the navigation of the vessel in that part of the voyage which is his pilotage-ground, is the tem- porary master charged with the safety of the vessel and cargo, and of the lives of those on board, and intrusted with the command of the crew. He is not only one of the persons engaged in navigation, but he occupies a most important and responsible place among those thus engaged. And if congress has power to regulate the seamen who assist the pilot in the management of the vessel, a power never denied, we can perceive no valid reason why the pilot should be beyond the reach of the same power. It is true that, according to the usages of modern commerce on the ocean, the pilot is on board only during a part of the voyage between ports of dif- ferent States, or between ports of the United States and foreign countries; but if he is on board for such a purpose and during so COOLEY V. BOARD OF WARDENS OP PHILADELPHIA. 241 much of the voyage as to he engaged in navigation, the power to regulate navigation extends to him while thus engaged, as clearly as it would if he were to remain on hoard throughout the whole passage, from port to port. For it is a power which extends to every part of the voyage, and may regulate those who conduct or assist in conducting navigation in one part of a voyage as much as in another part, or during the whole voyage. Nor should it be lost sight of, that this subject of the regulation of pilots and pilotage has an intimate connection with, and an important relation to, the general subject of commerce with for- eign nations and among the several States, over which it was one main object of the constitution to create a national control. Conflicts between the laws of neighboring States, and discrimina- tions favorable or adverse to commerce with particular foreign nations, might be created by state laws regulating pilotage, deeply affecting that equality of commercial rights, and that freedom from state interference, which those who formed the constitution were so anxious to secure, and which the experience of more than half a century has taught us to value so highly. The apprehen- sion of this danger is not speculative merely. For, in 1837, con- gress actually interposed to relieve the commerce of the country from serious embarrassment, arising from the laws of different States, situate upon waters which are the boundary between them. This was done by an enactment of the 2d of March, 1837,^ in the following words: — "Be it enacted, that it shall and may be lawful for the master or commander of any vessel coming into or going out of any port situate upon waters which are the boundary between two States, to employ any pilot duly licensed or authorized by the laws of either of the States bounded on the said waters, to pilot said vessel to or from said port, any law, usage, or custom to the contrary notwithstanding." The act of 1789, 1 Stats, at Large, 54, already referred to, con- tains a clear legislaiti- not to the courts. After what has already been said, it is unnecessary to refer at length to the effect of the other provision of the Fourteenth Amendment which is relied upon, viz., that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Certainly, it cannot be claimed that this prevents the State from regulating the fares of hackmen or the charges of draymen in Chicago, unless it does the same thing in every other place within its jurisdiction. But, as has been seen, the power to regulate the business of warehouses depends upon the same principle as the power to regulate hackmen and draymen, and what cannot be done in the one case in this particular cannot be done in the other. We come now to consider the effect upon this statute of the power of Congress to regulate commerce. It was very properly said in the case of the State Tax on Eail- way Gross Keeeipts, 15 Wall., 393, that "it is not everything that affects commerce that amounts to a regulation of it, within the meaning of the Constitution." The warehouses of these plaintiffs in error are situated and their business carried on exclusively within the limits of the State of Illinois. They are used as instru- ments by those engaged in State as well as those engaged in iuter- state commerce, but they are no more necessarily a part of com- merce itself than the dray or the cart by which, but for them, grain would be transferred from one railroad station to another. Incidentally they may become connected with interstate com- merce, but not necessarily so. Their regulation is a thing of domestic concern, and, certainly, until Congress acts in reference to their interstate relations, the State may exercise all the powers of government over them, even though in so doing it may indi- rectly operate upon commerce outside its immediate jurisdiction. We do not say that a case may not arise in which it will be found that a State, under the form of regulating its own affairs, has encroached upon the exclusive domain of Congress, in respect to interstate commerce, but we do say that, upon the facts as they are represented to us in this record, that has not been done. The remaining objection, to wit, that the statute in its present form is repugnant to sect. 9, art. 1, of the Constitution of the United States^ because it gives preference to the ports of one State over those of another, may be disposed of by the single remark that this provision operates only as a limitation of the ESCANABA COMPANY v. CHICAGO. 299 powers of Congress, and in no respect affects the States in the regulation of their domestic affairs. We conclude, therefore, that the statute in question is not re- pugnant to the Constitution of the United States, and that there is no error in the judgment. In passing upon this case we have not been unmindful of the vast importance of the questions in- volved. This and cases of a kindred character were argued before us more than a year ago by most eminent counsel, and in a manner worthy of their well-earned reputations. We have kept the cases long under advisement, in order that their decision might be the result of our mature deliberations. Judgment affirmed. [Mh. Justice Field rendered a dissenting opinion, in which Mr. Justice Steong concurred.] ESCANABA COMPANY v. CHICAGO. 107 U. S., 678. Decided 1882. Appeal from the Circuit Court of the United States for the Northern District of Illinois. The case is fully stated in the opinion of the court. . . . Mb. Justice Field delivered the opinion of the court. The Escanaba and Lake Michigan Transportation Company, a corporation created under the laws of Michigan, is the owner of three steam-vessels engaged in the carrying trade between ports and places in different states on Lake Michigan and the navigable waters connecting with it. The vessels axe enrolled and licensed for the coasting trade, and are principally employed in carrying iron ore from the port of Escanaba, in Michigan, to the docks of the Union Iron and Steel Company on the south fork of the south branch of the Chicago Eiver in the city of Chicago. In their course up the river and its south branch and fork to the docks they are required to pass through draws of several bridges constructed over the stream by the city of Chicago; and it is of obstructions caused by the closing of the draws, under an ordi- nance of the city, for a designated hour of the morning and evening during week-days, and by a limitation of the time to ten minutes, during which a draw may be left open for the passage of a vessel, and by some of the piers in the south branch and fork, and the bridges resting on them, that the corporation complains, and to enjoin the city from closing the draws for the morning 300 CASES ON CONSTITUTIONAL LAW. and evening houra designated, and enforcing the ten minutes' limitation, and to compel the removal of the objectionable piers and bridges, the present bill is filed. The river and its branches are entirely within the State of Illi- nois, and all of it, and nearly all of both branches that is naviga- ble, are within the limits of the city of Chicago. The river, from the junction of its two branches to the lake, is about three-fourths of a mile in length. The branches flow in opposite directions and meet at its head, nearly at right angles with it. Originally the width of the river and its branches seldom exceeded one hun- dred and fifty feet; of the branches and fork it was often less than one hundred feet; but it has been greatly enlarged by the city for the convenience of its commerce. The city fronts on Lake Michigan, and the mouth of the Chi- cago Eiver is near its center. The river and its branches divide the city into three sections; one lying north of the main river and east of its north branch, which may be called its northern division; ' one lying between the north and south branches, which may be called its western division; and one lying south of the main river and east of the south branch, which may be called its southern division. Along the river and its branches the city has grown up into magnificent proportions, having a population of six hundred thousand souls. Eunning back from them on both sides are avenues and streets lined with blocks of edifices, public and private, with stores and warehouses, and the immense variety of buildings suited for the residence and the business of this vast population. These avenues and streets are connected by a great number of bridges, over which there is a constant passage of foot-passengers and of vehicles of all kinds. A slight impedi- ment to the movement causes the stoppage of a crowd of passen- gers and a long line of vehicles. The main business of the city, where the principal stores, ware- houses, offices, and public buildings are situated, is in the southern division of the city; and a large number of the persons who do business there reside in the northern or the western division, or in the suburbs. While this is the condition of business in the city on the land, the river and its branches are crowded with vessels of all kinds; sailing craft and steamers, boats, barges, and tugs, moving back- wards and forwards, and loading and unloading. Along the banks there are docks, warehouses, elevators, and all the appliances for shipping and reshipping goods. To these vessels the unrestricted navigation of the river and its branches is of the utmost impor- BSCANABX COMPANY v. CHICAGO. 301 tance; -while to those who are compelled to cross the river and its branches the bridges are a necessity. The object of wise legisla- tion is to give facilities to both, with the least obstruction to either. This the city of Chicago has endeavored to do. The State of Illinois, within which, as already mentioned, the river and its branches lie, has vested in the authorities of the city jurisdiction over bridges within its limits, their construction, re- pair, and use, and empowered them to deepen, widen, and change the channel of the stream, and to make regulations in regard to the times at which the bridges shall be kept open for the passage of vessels. Acting upon the power thus conferred, the authorities have endeavored to meet the wants of commerce with other States, and the necessities of the population of the city residing or doing business in different sections. For this purpose they have pre- scribed as follows: that "Between the hours of six and seven o'clock in the morning, and half-past five and half -past six o'clock in the evenings, Sundays excepted, it shall be unlawful to open any bridge within the city of Chicago;" and that "During the hours between seven o'clock in the morning and half-past five o'clock in the evening, it shall be unlawful to keep open any bridge within the city of Chicago for the purpose of permitting vessels or other crafts to pass through the same, for a longer period at any one time than ten minutes, at the expiration of which period it shall be the duty of the bridge-tender or other person in charge of the bridge to display the proper signal, and immediately close the same, and keep it closed for fully ten min- utes for such persons, teams, or vehicles as may be waiting to pass over, if so much time shall be required; when the said bridge shall again be opened (if necessary for vessels to pass) for a like period, and so on alternately (if necessary) during the hours last aforesaid; and in every instance where any such bridge shall be open for the passage of any vessel, vessels, or other craft, and closed before the expiration of ten minutes from the time of open- ing, said bridge shall then, in every such case, remain closed for fully ten minutes, if necessary, in order to allow all persons, teams, and vehicles in waiting to pass over said bridge." The first of these requirements was called for to accommodate clerks, apprentices, and laboring men seeking to cross the bridges, at the hours named, in going to and returning from their places of labor. Any nnusual delay in the morning would derange their business for the day, and subject them to a corresponding loss of wages. At the hours specified there is three times — so the record 302 CASES ON CONSTITUTIONAL LAW. shows — the usual number of pedestrians going and returning that there is during other hours. The limitation of ten minutes for the passage of the draws by vessels seems to have been eminently wise and proper for the pro- tection of the interests of all parties. Ten minutes is ample time for any vessel to pass the draw of a bridge, and the allowance of more time would subject foot-passengerSj teams, and other vehicles to great inconvenience and delays. The complainant principally objects to this ten minutes' lim- itation, and to the assignment of the morning and evening hour to pedestrians and vehicles. It insists that the navigation of the river and its branches should not be thus delayed; and that the rights of commerce by vessels are paramount to the rights of com- merce by any other way. But in this view the complainant is in error. The rights of each class are to be enjoyed without invasion of the equal rights of others. Some concession must be made on every side for the convenience and the harmonious pursuit of different occupations. Independently of any constitutional restrictions, nothing would seem more just and reasonable, or better designed to meet the wants of the population of an immense city, consistently with the interests of commerce than the ten minutes rule and the assignment of the morning and evening hours which the city ordi- nance has prescribed. The power vested in the general government to regulate inter- state and foreign commerce involves the control of the waters of the United States which are navigable in fact, so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the States or with foreign coun- tries. The Daniel Ball, 10 "Wall., 557. Such is the case with the Chicago Eiver and its branches. The common-law test of the navigability of waters, that they are subject to the ebb and flow of the tide, grew out of the fact that in England there are no waters navigable in fact, or to any great extent, which are not also affected by the tide. That test has long since been discarded in this country. Vessels larger than any which existed in Eng- land, when that test was established, now navigate rivers and inland lakes for more than a thousand miles beyond the reach of any tide. That test only becomes important when considering the rights of riparian owners to the bed of the stream, as in some States it governs in that matter. The Chicago Eiver and its branches must, therefore, be deemed ESCANABA COMPANY V. CHICAGO. 303 navigable waters of the United States, over wliich. Congress under its commercial power may exercise control to the extent neces- sary to protect, preserve, and improve their free navigation. But the States have full power to regulate within their limits matters of internal police, including in that general designation whatever will promote the peace, comfort, convenience, and pros- perity of their people. This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant authority. They are the first to see the importance of euch means of internal communication, and are more deeply con- cerned than others in their wise management. Illinois is more immediately affected by the bridges over the Chicago River and its branches than any other State, and is more directly con- cerned for the prosperity of the city of Chicago, for the con- venience and comfort of its inhabitants, and the growth of its commerce. And nowhere could the power to control the bridges in that city, their construction, form, and strength, and the size of their draws, and the manner and times of using them, be bet- ter vested than with the State, or the authorities of the city upon whom it has devolved that duty. When its power is exercised, so as to unnecessarily obstruct the navigation of the river or its branches, Congress may interfere and remove the obstruction. If the power of the State and that of the Federal government come in conflict, the latter must control and the former yield. This necessarily follows from the position given by the Constitution to legislation in pursuance of it, as the supreme law of the land. But until Congress acts on the subject, the power of the State over bridges across its navigable streams is plenary. This doc- trine has been recognized from the earliest period, and approved in repeated cases, the most notable of which are Willson v. The Blackbird Creek Marsh Co., 2 Pet., 245, decided in 1829, and Oilman v. Philadelphia, 3 Wall., 713, decided in 1865. . . . [Here follow citations from these cases and from Pound v. Turck, 95 U. S., 459.] The doctrine declared in these several decisions is in accord- ance with the more general doctrine now firmly established, that the commercial power of Congress is exclusive of State authority only when the subjects upon which it is exercised are national in their character, and admit and require uniformity of regulation affecting alike aU the States. Upon such subjects only that authority can act which can speak for the whole country. Its non-action is therefore a declaration that they shall remain free 304 CASES ON CONSTITUTIONAL LAW. from all regulation. Welton v. State of Missouri, 91 TJ. S., 275; Henderson v. Mayor of New York, 92 Id., 259; County of Mobile V. Kimball, 102 Id., 691. On the other hand, where the subjects on which the power may be exercised are local in their nature or operation, or constitute mere aids to commerce, the authority of the State may be exerted for their regulation and management until Congress interferes and supersedes it. As said in the case last cited: "The uniform- ity of commercial regulations which the grant to Congress was designed to secure against conflicting State provisions, was neces- sarily intended only for cases where such uniformity is practicable. Where, from the nature of the subject or the sphere of its opera- tions, the case is local and limited, special regulations, adapted to the immediate locality, could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of Congress, for when that acts the State authority is superseded. Inaction of Congress upon these subjects of a local nature or operation, unlike its inaction upon matters affecting all the States and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done in respect to them, but is rather to be deemed a declaration that for the time being and until it sees fit to act they may be regu- lated by State authority." Bridges over navigable streams, which are entirely within the limits of a State, are of the latter class. The local authority can better appreciate their necessity, and can better direct the manner in which they shall be used and regulated than a government at a distance. It is therefore, a matter of good sense and practical wisdom to leave their control and management with the States, Congress having the power at all times to interfere and super- sede their authority whenever they act arbitrarily and to the injury of commerce. It is, however, contended here that Congress has interfered, and by its legislation expressed its opinion as to the navigation of Chicago Eiver and its branches; that it has done so by acts recognizing the ordinance of 1787, and by appropriations for the improvement of the harbor of Chicago. The ordinance of 1787 for the government of the territory of the United States northwest of the Ohio Eiver, contained in its fourth article a clause declaring that, "The navigable waters lead- ing into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of ESCANABA COMPANY v. CHICAGO. 305 the United States and those of any other States that may he ad- mitted into the coiifederaey, without any tax, impost, or duty therefor." The ordinance was passed July 13, 1787, one year and nearly eight months before the Constitution took effect; and although it appears to have been treated afterwards as in force in the terri- tory, except as modified by Congress, and by the Act of May 7, 1800, c. 41, creating the Territory of Indiana, and by the Act of Feb. 3, 1809, c. 13, creating the Territory of Illinois, the rights and privileges granted by the ordinance are expressly secured to the inhabitants of those Territories; and although the act of April 18, 1818, c. 67, enabling the people of Illinois Territory to form a constitution and State government, and the resolution of Congress of Dec. 3, 1818, declaring the admission of the State into the Union, refer to the principles of the ordinance accord- ing to which the constitution was to be formed, its provisions could not control the authority and powers of the State after her admission. Whatever the limitation upon her powers as a government whilst in a territorial condition, whether from the ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a State of the Union. On her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States. She was ad- mitted, and could be admitted, only on the same footing with them. The language of the resolution admitting her is "on an equal footing with the original States in all respects whatever." 3 Stat, 536. Equality of constitutional right and power is the condition of all the States of the Union, old and new. Illinois, therefore, as was well observed by counsel, could afterwards exer- cise the same power over rivers within her limits that Delaware exercised over Blackbird Creek, and Pennsylvania over the Schuyl- kill Eiver. Pollard's Lessee v. Hagan, 3 How., 212; Permoli v. First Municipality, Id., 589; Strader v. Graham, 10 Id., 82. But aside from these considerations, we do not see that the clause of the ordinance upon which reliance is placed materially affects the question before us. That clause contains two provi- sions: one that the navigable waters leading into the Missis- sippi and the St. Lawrence shall be common highways to the in- habitants; and the other, that they shall be forever free to them without any tax, impost, or duty therefor. The navigation of the Illinois Eiver is free, so far as we are informed, from any tax, impost, or duty, and its character as a common highway is not 306 CASES ON CONSTITUTIONAL LAW. affected by the fact that it is crossed by bridges. All highways, whether by land or water, are subject to such crossings as the public necessities and convenience may require, and their char- acter as such is not changed, if the crossings are allowed under reasonable conditions, and not so as to needlessly obstruct the use of the highways. In the sense in which the terms are used by publicists and statesmen, free navigation is consistent with ferries and bridges across a river for the transit of persons and merchandise as the necessities and convenience of the community may require. In Palmer v. Commissioners of Cuyahoga County we have a case in point. There application was made to the Cir- cuit Court of the United States in Ohio for an injunction to re- strain the erection of a drawbridge over a river in that State on the ground that it would obstruct the navigation of the stream and injure the property of the plaintiff. The application was founded on the provision of the fourth article of the ordinance mentioned. The court, which was presided over by Mr. Justice McLean, then having a seat on this bench, refused the injunction, observing that "This provision does not prevent a State from im- proving the navigableness of these waters, by removing obstruc- tions, or by dams and locks, so increasing the depth of the water as to extend the line of navigation. Nor does the ordinance pro- hibit the construction of any work on the river which the State may consider important to commercial intercourse. A dam may be thrown over the river, provided a lock is so constructed as to permit boats to pass with little or no delay, and without charge. A temporary delay, such as passing a lock, could not be considered as an obstruction prohibited by the ordinance." And again: "A drawbridge across a navigable water is not an obstruction. As this would not be a work connected with the navigation of the river, no toll, it is supposed, could be charged for the passage of boats. But the obstruction would be only momentary, to raise the draw; and as such a work may be very important in a gen- eral intercourse of a community, no doubt is entertained as to the power of the State to make the bridge." 3 McLean, 226. The same observations may be made of the subsequent legislation of Congress declaring that navigable rivers within the Territories of the United States shall be deemed public highways. Sect. 9 of the act of May 18, 1796, c. 29; sect. 6 of the act of March 26, 1804, c. 35. As to the appropriations by Congress, no money has been ex- pended on the improvement of the Chicago River above the first bridge from the lake, known as Eush Street Bridge. No bridge, ESCANABA COMPANY v. CHICAGO. 307 therefore, interferes with the navigation of any portion of the river which has been thus improved. But, if it were otherwise, it is not perceived how the improvement of the navigability of the stream can affect the ordinary means of crossing it by ferries and bridges. The free navigation of a stream does not require an abandonment of those means. To render the action of the State invalid in constructing or authorizing the construction of bridges over one of its navigable streams, the general government must directly interfere so as to supersede its authority and annul what it has done in the matter. It appears from the testimony in the record that the money appropriated by Congress has been expended almost exclusively upon what is known as the outer harbor of Chicago, a part of the lake sun-ounded by breakwaters. The fact that formerly a light- house was erected where now Eush Street Bridge stands in no respect affects the question. A ferry was then used there; and before the construction of the bridge the site as a light-house was abandoned. The existing light-house is below all the bridges. The improvements on the river above the first bridge do not represent any expenditure of the government. From any view of this case, we see no error in the action of the court below, and this decree must accordingly be Affirmed. Note. — ^A municipal ordinance prohibiting from washing and ironing in public laundries and wash-houses within defined terri- torial limits, from ten o'clock at night until six in the morning, is a purely police regulation, within the competency of a munici- pality possesed of ordinary powers. Barbier v. Connolly, 113 U. S., 27. The Fourteenth Amendment of the Constitution does not im- pair the police power of a State. lb. The prohibition by the State of Kansas, in its Constitution and laws, of the manufacture and sale within the limits of the State of intoxicating liquors for general use there as a beverage, is fairly adapted to the end of protecting the community against the evils which result from excessive use of ardent spirits, and is not subject to the objection that, under the guise of police regu- lations, the State is aiming to deprive the citizen of his constitu- tional rights. Mugler v. Kansas, 123 U. S., 623. See also The License Cases, 5 Howard, 504; The License Tax Cases, 5 Wallace, 462; Cooley v. Wardens, 12 Howard, 299; Leisy V. Hardin, 135 IT. S., 100; Minnesota v. Barber, 136 U. S., 313; and The Slaughter House Cases, 16 Wallace, 36. VI. GENERAL (IMPLIED) POWERS. Mcculloch t. the state oe maeyland et al. 4 Wheaton, 316. Decided 1819. [The statement of facts and the second part of the opinion, beginning on page 425 of Wheaton, are given above, page 32. The first part of the opinion is given below.] Marshall, C. J., delivered the opinion of the court. . . . The first question made in the cause is, has congress power to incorporate a bank? It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceed- ings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation. It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause, and the human judgment be sus- pended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted, if not put at rest by the practice of the government, ought to re- ceive a considerable impression from that practice. An exposi- tion of the constitution,, deliberately established by legislative acts, on the faith of which an immense property has been ad- vanced, ought not to be lightly disregarded. The power now contested was exercised by the first congress elected under the present constitution. The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely 308 Mcculloch v. state of Maryland. 309 understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and after- wards in the execntive cabinet, with as much persevering talent as any measure has ever experienced, and being supported by argu- ments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permit- ted to expire; but a short experience of the embarrassments to which the refusal to revive it exposed the government, convinced those who were most prejudiced against the measure of its neces- sity, and induced the passage of the present law. It would require no ordinary share of intrepidity to assert, that a measure adopted under these circumstances, was a bold and plain usurpation, to which the constitution gave no countenance. These observations belong to the cause; but they are not made under the impression that, were the question entirely new, the law would be found irreconcilable with the constitution. In discussing this question, the counsel for the State of Mary- land have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone pos- sess supreme dominion. It would be difficult to sustain this proposition. The conven- tion which fi-amed the constitution was, indeed, elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing congress of the United States, with a request that it might "be submitted to a conven- tion of delegates, chosen in each State, by the people thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted; and by the convention, by congress, and by the State legislatures, the instru- ment was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several States; and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the 310 CASES ON CONSTITUTIONAL LAW. measures of the people themselves, or become the measures of the State governments. From these conventions the constitution derives its whole au- thority. The government proceeds directly from the people; is "ordained and established" in tlie name of the people; and is de- clared to be ordained, "in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the bless- ings of liberty to themselves and to their posterity." The assent of the States, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It reqtdred not the affirmance, and could not be negatived, by the State governments. The constitution, when thus adopted, was of complete obligation, and bound the State sovereignties. It has been said that the people had already surrendered all their powers to the State sovereignties, and had nothing more to give. But, surely, the question whether they may resume and modify the powers granted to government, does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the States. The powers delegated to the State sovereignties were to be exer- cised by themselves, not by a distinct and independent sover- eignty, created by themselves. To the formation of a league, such as was the confederation, the State sovereignties were certainly competent. But when, "in order to form a more perfect union," it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influ- ence of this fact on the case), is emphatically and truly a govern- ment of the people. In form and in substance it emanates from them, its powers are granted by them, and are to be exercised directly on them, and for their benefit. This government is acknowledged by all to be one of enumer- ated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the ques- tion respecting the extent of the powers actually granted, is per- Mcculloch t. state of Maryland. 311 petually arising, and will probably continue to arise, as long as our system shall exist. In discussing these questions, the conflicting powers of the gen- eral and State governments must be brought into view, and the supremacy of their respective laws, when they are in opposition, must be settled. If any one proposition could command the universal assent of mankind, Ave might expect that it would be this: that the govern- ment of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature. It is the government of all; its powers are dele- gated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason: the people have, in express terms, decided it, by saying, "this constitution, and the laws of the United States, which shall be made in pursuance there- of," "shall be the supreme law of the land," and by requiring that the members of the State legislatures, and the officers of the exec- utive and judicial departments of the States, shall take the oath of fidelity to it. The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, "anything in the constitution or laws of any State, to the contrary notwith- standing." Among the enumerated powers, we do not find that of estab- lishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, ex- cludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word "expressly," and declares only that the powers "not dele- gated to the United States, nor prohibited to the States, are re- served to the States or to the people;" thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instru- ment. The men who drew and adopted this amendment, had ex- perienced the embarrassments resulting from the insertion of this word in the articles of confederation, and probably omitted it to 313 CASES ON CONSTITUTIONAL LAW. avoid those embarrassments. A constitution, to contain an aa- curate detail of all the subdivisions of which its great powers wifl admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, re^ quires, that only its great outlines should be marked, its impor- tant objects designated, and the minor ingredients which com- pose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitaitions, found in the 9th section of the 1st article, in- troduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its re- ceiving a fair and just interpretation. In considering this quesT tion, then, we must never forget, that it is a constitution we are expounding. Although, among the enumerated powers of government, we do not find the wt)rd "bank," or "incorporation," we find the great powers to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct war; and to raise and sup- port armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pre- tended that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may, with great reason, be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the North should be transported to the South, that raised in the East conveyed to the West, or that this order should be re- versed. Is that construction of the constitution to be preferred ■which would render these operations difficult, hazardous, and ex- Mcculloch v. state of Maryland. 313 pensiye? Cmi we adopt that construction (ujiless the words im- perioTisly require it) which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise by withholding a choice of means? If, indeed, such be the mandate of the constitution, we hstTe only to obeyj but that instrument does not profess to enumerate the means by which the powers it confers may be exe- cuted; nor does it prohibit the creation of a corporation, if the existence of such a being be essential to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be empl-oyed. It is not denied, that the powers given to the government imply the ordinary means of execution. That, for example, of raising revenue, and applying it to national purposes, is admitted to imply the power of conveying money from place to place, as the exigen- cies of the nation may require, and of employing the usual means of conveyance. But it is denied that the government has its choice of means; or, that it may employ the most convenient means, if, to employ them, it be necessaiy to erect a corporation. On what foundation does this argument rest? On this alone: The power of creating a corporation, is one appertaining to sov- ereignty, and is not expressly conferred on Congress. This is true. But all legislative powers appertain to sovereignty. The original power of giving the law on any subject whatever, is a sovereign power; and if the government of the Union is restrained from creating a corporation, as a means for performing its functions, on the single reason that the creation of a corporation is an act of sovereignty; if the sufficiency of this reason be acknowledged, there would be some difficulty in sustaining the authority of con- gress to pass other laws for the accomplishment of the same ob- jects. The government which has a right to do an act, and has im- posed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means; and those who contend that it may not select any appropriate means, that one particular mode of effecting the object is excepted, take upon themselves the burden of establishing that exception. The creation of a corporation, it is said, appertains to sover- eignty. This is admitted. But to what portion of sovereignty does it appertain? Does it belong to one more than to another? In America, the powers of sovereignty are divided between the gov- ernment of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither 314 CASES ON CONSTITUTIONAL LAW. sovereign with respect to the objects committed to the other. "We cannot comprehend that train of reasoning which would maintain, that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some state constitutions were formed before, some since that of the United States. "We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respect- ive powers must, we think, be precisely the same as if they had been formed at the same time. Had they been formed at the same time, and had the people conferred on the general government the power contained in the constitution, and on the States the whole re- siduum of power, would it have been asserted that the government of the Union was not sovereign with respect to those objects which were intrusted to it, in relation to which its laws were de- clared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning which main- tains, that a power appertaining to sovereignty cannot be con- nected with that vast portion of it which is granted to the general government, so far as it is calculated to subserve the legitimate objects of that government. The power of creating a corpora- tion, though appertaining to sovereignty, is not, like the power of making war, or levying taxes, or of regulating commerce, a great substantive and independent power, which cannot be im- plied as incidental to other powers, or used as a means of executing them. It is never the end for which other powers are exercised, but a means by which other objects are accomplished. No con- tributions are made to charity for the sake of an incorporation, but a corporation is created to administer the charity; no seminary of learning is instituted in order to be incorporated, but the cor- porate character is conferred to subserve the purposes of educa- tion. No city was ever built with the sole object of being incor- porated, but is incorporated as affording the best means of being well governed. The power of creating a corporation is never used for its own salce, but for the puropse of effecting something else. No sufficient reason is, therefore, perceived, why it may not pass as incidental to those powers which are expressly given, if it be a direct mode of executing them. But the constitution of the United States has not left the right of congress to employ the necessary means, for the execution of the powers conferred on the government, to general reasoning. To its enumeration 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- Mcculloch v. state of Maryland. 315 tion, in the govemmenf of- the United States, or in any depart- ment thereof." The counsel for the State of Maryland have tirged various argu- ments, to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the geiieral right, which might otherwise he implied, of selecting means for execut- ing the enumerated powers. In support of this proposition, they have found it necessary to contend, that this clause was inserted for the purpose of confer- ring on congress the power of making laws. That, without it, doubts might be entertained, whether congress could exercise its powers in the form of legislation. But could this be the object for which it was inserted? A government is created by the people, having legislative, executive, and judicial powers. Its legislative powers are vested in a con- gress, which is to consist of a senate and house of representatives. Each house may determine the rule of its proceedings; and it is declared that every bill which shall have passed both houses, shall, before it becomes a law, be presented to the President of the United States. The 7th section describes the course of pro- ceedings, by which a bill shall become a law; and, then, the 8th section enumerates the powers of congress. Could it be necessary to say, that a legislature should exercise legislative powers, in the shape of legislation? After allowing each house to prescribe its own course of proceeding, after describing the manner in which a bill should become a law, would it have entered into the mind of a single member of the convention, that an express power to make laws was necessary to enable the legislature to make them? That a legislature, endowed with legislative powers, can legislate, is a proposition too self-evident to have been questioned. But the argument on which most reliance is placed, is drawn from the peculiar language of this clause. Congress is not em- powered by it to make all laws, which may have relation to the powers conferred on the government, but only such as may be "necessary and proper" for carrying them into execution. The word "necessary^' is considered as controlling the whole sentence, and as limiting the right to pass laws for the execution of the granted powers, to such as are indispensable, and without which the power would be nugatory. That it excludes the choice of means, and leaves to congress, in each case, that only which is most direct and simple. Is it true, that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical neces- 316 CASES ON CONSTITUTIONAL LAW. 6ity, so strong, that one thiag, to whieli anoihsT may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its ubc, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to an- other. To employ the means necessary to an end, is generally understood as employing any means calcukted to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situ- ations, one .single definite idea; and nothing is more common than to use words in a figurative sense. Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It is essential to just construction, that many words which import something excessive, should be understood in a more mitigated sense — ^in that sense which common usage justifies. The word "necessary^' is of this description. It has not a fixed character peculiar to itself. It admits of all degrees of comparison; and is often connected with words, which increase or diminish the im- pression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably nec- essary. To no mind would the same idea be conveyed, by these several phrases. This comment on the word is well illustrated, . by the passage cited at the bar, from the 10th section of the 1st article of the constitution. It is, we thinlc, impossible to com- pare the sentence which prohibits a State from laying "imposts, or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws," with that which au- thorizes congress "ito mske all laws which shall be necessary and proper for carrying into execution" the powers of the general gov- ernment, without feeling a conviction that the convention under- stood itself to change materially the meaning of the word "neces- sary" by prefixing the word "absolutely." This word, then, like others, is used in various senses; and, in its construction, the sub- ject, the context, the intention of the person using them, are all to be taken into view. Let this be done in the case under consideration. The subject is the execution of those great powers on which the welfare of a nation essentially depends. It must have been the intention of those who gave these powers, to insure as far as human prudence could insure, their beneficial execution. This coidd not be done by confining the choice of means to such narrow limits as not to Mcculloch v. state of Maryland. 317 leave it in the power of coBgress to adopt any which might be appropriate, and which were conducive to- the end. This piro- vision is made in a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which govern- ment should, in all. future time, execute its powers, would have been to change, raitirely, the character of the instrument, and give it the propeirties of a legal code. It would have been an un- wise attempt to provide, by immutable rules, for exigencies which, if foreseen at all^ must have been seen dimly, and which can be best provided for as they occur. To- have declared that the best means shall not be used, but those alone without which the power given would be nugatory, would have been to deprive the legis- lature of the capacity to avail itself of experience, to exercise its reason,, and to aeeommodate its legislation to circumstances. If we apply this- principle of construction to any of the powers of the government, we shall find it so pernicious in its operation that we shall be com^pelled to discard it. The powers vested in congress may certainly be carried into execution, without prescribing an oath, of office. The power to exact this security for the faithful performance of duty, is not given, nor is it indispensably necessary. The different departments may be established; taxes may be im- posed and collected; armies and navies may be raised and main- tained; and money may be borrowed, without requiring an oath of of&ee. It might be argued, with as much plausibility, as other incidental powers have been assailed^ that the eonvention was not unmindful of this subject. The oath which might be exacted — that of fidelity to the constitution — ^is prescribed, and no other can be required. Yet, he would be charged with insanity who should contend,, that the legislature might not superadd to the oath directed by the constitution, such other oath of office as its wisdom might suggest. So, with respect to the whole penal code of the United States. Whence arises the power to punish in cases not prescribed by the constitution? All admit that the government may, legitimately, punish any violation of its laws; and yet, this is not among the enumerated powers of congress. The right to enforce the ob- servance of law, by punishing its infractionj might be denied with the more plausibility, because it is expressly given in some cases. Congress is empowered "to provide for the punishment of coun- terfeiting the securities and current coin of the United States," and "to define and punish piracies- and felonies committed on the h^g h seas, and offenses against- the law of nations." Tfap several. 318 CASES ON CONSTITUTIONAL LAW. powers of congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution, although no punishment should be inflicted in cases where the right to punish is not expressly given. Take, for example, the power "to establish post-offices and post-roads." This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post-road, from one post- office to another. And, from this implied power, has again been inferred the right to punish those who steal letters from the post- office, or rob the mail. It may be said, with some plausibility, that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post-office and post-road. This right is, indeed, essential to the beneficial exer- cise of the power, but not indispensably necessary to its existence. So, of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court. To punish these offenses is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment. The baneful influence of this narrow construction on all the operations of the government, and the absolute impracticability of maintaining it without rendering the government incompetent to its great objects, might be illustrated by numerous examples drawn from the constitution, and from our laws. The good sense of the public has pronounced, without hesitation, that the power of punishment appertains to sovereignty, and may be exercised whenever the sovereign has a right to act, as incidental to his constitutional powers. It is a means for carrying into execution all sovereign powers, and may be used, although not indispensa- bly necessary. It is a right incidental to the power, and conducive to its beneficial exercise. If this limited construction of the word "necessary" must be abandoned in order to punish, whence is derived the rule which would reinstate it, when the government would carry its powers into execution by means not vindictive in their nature? If the word "necessary" means "needful," "requisite," "essential," "con- ducive to," in order to let in the power of punishment for the in- fraction of law, why is it not equally comprehensive when required to authorize the use of means which facilitate the execution of the powers of government without the infliction of punishment? In ascertaining the sense in which the word "necessary" is used Mcculloch v. state of Maryland. 319 -in this clause of the constitution, we may derive some aid from that with which it is associated. Congress shall have power "to make all laws which shall be necessary and proper to carry into execution" the powers of the government. If the word "neces- sary" was used in that strict and rigorous sense for which the counsel for the State of Maryland contend, it would be an ex- traordinary departure from the usual course of the human mind, as exhibited in composition, to add a word, the only possible efEect of which is to qualify that strict and rigorous meaning; to pre- sent to the mind the idea of some choice of means of legislation not straitened and compressed within the narrow limits for which gentlemen contend. But the argument which most conclusively demonstrates the error of the construction contended for by the counsel for the State of Maryland, is founded on the intention of the convention, as manifested in the whole clause. To waste time and argument in proving that, without it, congress might carry its powers into exe- cution, would be not much less idle than to hold a lighted taper to the sun. As little can it be required to prove, that in the ab- sence of this clause, congress would have some choice of means. That it might employ those which, in its judgment, would most advantageously effect the object to be accomplished. That any means adapted to the end, any means which tended directly to the execution of the constitutional powers of the government, were in themselves constitutional. This clause, as construed by the State of Maryland, would abridge and almost annihilate this useful and necessary right of the legislature to select its means. That this could not be intended, is, we should think, had it not been already controverted, too apparent for controversy. We think so for the following reasons: — 1. The clause is placed among the powers of congress, not among the limitations on those powers. 2. Its terms purport to enlarge, not to diminish the powers vested in the government. It purports to be an additional power, not a restriction on those already granted. No reason has been or can be assigned, for thus concealing an intention to narrow the discretion of the national legislature, under words which purport to enlarge it. The framers of the constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had they been capable of using language which would convey to the eye one idea, and after deep reflection, im- press on the mind another, they would rather have disguised the grant of power, than its limitation. If then, their intention had 320 CASES ON CONSTITUTIONAL LAW. been, by this clause, to restrain the free use of means which might otherwise have been implied, that intention would have been in- serted in another place, and would have been expressed in terms resembling these: "In carrying into execution the foregoing pow- ers, and all others," &c., "no; laws shall be passed but such as are necessary and proper." Had the intention been to make this clause restrictive, it would unquestionably have been so in form as well as in effect. The result of the most careful and attentive consideration be- stowed upon this clause is, that if it does not enlarge, it cannot be construed to restrain the powers of congress, or to impair the right of the legislature to exercise its best judgment in the selec- tion of measures, to carry into execution the constitutional powers of the government. If no other motive for its insertion can be suggested, a sufficient one is found in the desire to remov« all doubts respecting the right to legislate on that vast mass of inci- dental powers which must be involved in the constitution, if that instrument be not a splendid bauble. We admit, as all must admit, that the powers of the govern- ment are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature 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 high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitu- tion, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional. That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular speci- fication than other means, has been sufficiently provedl If we look to the origin of corporations, to the manner in which they have been framed in that government, from which We have de- rived most of our legal principles and ideas, or to the uses to which they have been applied, we find no reason to suppose that a constitution, omitting, and wisely omitting, to enumerate ail the means for carrying into execution the great powers vested in gov- ernment, ought to have specified this. Had it been intended to grant this power as one which should be distinct and independent, to be exercised in any case whatever, it would have found a place among the enumerated powers of the government. But being considered merely as a means, to be employed only for the pur- Mcculloch v. state of Maryland. 321 pose of carrying into execution the given powers, there could be no motive for particularly mentioning it. The propriety of this remark would seem to be generally acknowledged by the universal acquiescence in the construction which has been uniformly put on the 3d secjtion of the 4th article of the constitution. The power to "make all needful rules and regulations respecting the territory or other property belonging to the United States," is not more comprehensive, than the power "to make all laws which shall be necessary and proper for carrying into execution" the powers of the government. Yet all admit the constitutionality of a territorial government, which is a corporate body. If a corporation may be employed indiscriminately with other means to carry into execution the powers of the government, no particular reason can be assigned for excluding the use of a bank, if required for its fiscal operations. To use one, must be within the discretion of congress, if it be an appropriate mode of execut- ing the powers of government. That it is a convenient, a useful, and essential instruanent in the prosecution of its fiscal operations, is not now a subject of controversy. All those who have been concerned in the administration of our finances, have concurred in representing its importance and necessity; and so strongly have they been felt, that statesmen of the first class, whose pre- vious opinions against it had been confirmed by every circum- stance which can fix the human judgment, have yielded those opinions to the exigencies of the nation. Under the confederation, congress justifying the measure by its necessity, transcended, per- haps, its powers to obtain the advantage of a bank; and our own legislation attests the universal conviction of the utility of thia measure. The time has passed away when it can be necessary to enter into any discussion in order to prove the importance of this instrument, as a means to effect the legitimate objects of the gov- ernment. But were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Should congress, in the execution of its powers, adopt measures which axe prohibited by the constitution; or should congress, ■under the pretext of executing its powers, pass laws for the ac- complishment of objects not intrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is 21 822 CASES ON CONSTITUTIONAL LAW. really calculated to effect any of the objects intrusted to the gov- ernment, to undertake here to inquire into the degree of its neces- sity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court dis- claims all pretensions to such a power. After this declaration, it can scarcely be, necessary to say, that, the esistence of state banks can have no possible influence on the question. No trace is to be found in the constitution of an inten- tion to create a dependence of the government of the Union on those of the States, for tlie execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends. To impose on it the necessity of resorting to means which it can- not control, which another government may furnish or withhold,, would render its course precarious, the result of its measures un- certain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution. But were it otherwise, the choice of means implies a right to choose a na/tional bank in prefer- ence to state banks, and congress alone can make the election. After the most deliberate eonsideration> it is the unanimous and decided opinion of this court, thait the act to incorporate the Bank of the United States is a law made in pursuance of the constitu- tion, and is a part of the supreme law of the land. The branches;, proceeding from the same stock, and being con- ducive to the complete accomplishment of the object, are equally constitutional. It would have been unwise to locate them in the charter, and it would be unnecessarily inconvenient to employ the legislative power in making those subordinate arrangements.. The great duties of the bank ai-e prescribed; those duties require branches, and the bank itself may, we^ think, be safely trusted with the selection of places where those branches, shall be fixed; reserving always to the government the riffht to require that a branch shall be located where it may be deemed necessary. It being the opinion of the court that the act incorporating the bank is constitutional; and that the power of establishing a- branch in the State of Maryland might be properly exercised by the bank itself, we proceed to inquire: — 2. Whether the State of Maryland may, without violating the- constitution, tax that branch? . . . We are unanimously of opinion, thait the law passed by the legislature of Maryland, imposing a tax on the Bank of the United States, is unconstitutional and void. . . . Mcculloch v. state of Maryland. 323 Note. — The most important discussions of the implied powers of Congress are those found in the legal tender cases. See Knox V. Lee, 12 Wallace, 457, and Juilliard v. Greenman, 110 U. S., 421. See also James Wilson's Considerations on the Power to Incorporate the Bank of North America, Works (Andrews' edi- tion), I, 549-577. Although a discussion of the inherent or im- plied powers of the Confederation, its reasoning is applicable to the implied powers of the gOTernment under the Constitution. Bryce says of Marshall's opinion in this case (American Com- monwealth, 3d Ed., I, 379, note), "This is really a working-out of one of the points of Hamilton's famous argument in favor of the Gonstittrtionaliiy of a United States bank: 'Every power vested in a government is in its nature sovereign, and inelu^ies by lorce of the term a right to employ all the means requisite and fairly applicable to the attainment of the enda of such power, and which are not precluded by restrietioas and exceptions specified in the Constitution.' Works (Lodge's Ed.), vol. iii, p. 181." "It is unnecessary for me to point- out . . . the great influ- ence which that decision of the Supreme Court has exercised over the material and financial prosperity of this country. Had the decision been, that there existed in this government no power to create a national currency, or to provide for a national banking system, the disastrous effects upon the business prosperity of the people can hardly be imagined. Those who are old enough to have gone through the State bank and wildcat systems of paper money prevalent a few years since in this country, can bear feeling testimony to the value of a so-called national bank system." Miller, Lectures on the Constitution of the United States, 391. VII. EXECUTIVE POWERS. In Ex PAETE Gaeland, 4 Wallace, 333 (1866), the validity of an act of Congress requiring eTery person admitted to practice before a United States court to take an oath that he had never home arms against the United States nor held office under any authority hostile to the United States was called in question. Mr. Justice Field said with reference to the nature of the pardoning power of the President, "The Constitution provides that the President 'shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.'^ "The power thus conferred is unlimited, with the exception stated. It extends to every offense known to the law, and may be exercised at any time after its commission, either before legal proceedings are taken, or during their pendency, or after convic- tion and judgment. This power of the President is not subject to legislative control. Congress can neither limit the effect of his pardon, nor exclude from its exercise any class of offenders. The' benign prerogative of mercy imposed in him cannot be fettered by any legislative restrictions. "Such being the case, the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it re- leases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense. If granted before conviction, it pre- vents any of the penalties and disabilities consequent upon con- viction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity. "There is only this limitation to its operation: it does not re- 1 Article II, S 2. 324 IN RE NEAGLB. 335 store offices forfeited, or property or interests vested in others in consequence of the conviction and judgment.^ "The pardon produced by the petition is a full pardon 'for all offenses by him committed, arising from participation, direct or implied, in the Eebellion,' and is subject to certain conditions which have been complied with. The effect of this pardon is to relieve the petitioner from all penalties and disabilities attached to the offense of treason, committed by his participation in the Eebellion. So far as that offense is concerned, he is thus placed beyond the reach of punishment of any kind. But to exclude him, by reason of that offense, from continuing in the enjoyment of a previously acquired right, is to enforce a punishment for that offense notwithstanding the pardon. If such exclusion can be effected by the exaction of an expurgatory oath covering the of- fense, the pardon may be avoided, and that accomplished indi- rectly which cannot be reached by direct legislation. It is not within the constitutional power of Congress thus to inflict pun- ishment beyond the reach of executive clemency. From the pe- titioner, therefore, the oath required by the act of January 34th, 1865, could not be exacted, even if that act were not subject to any other objection than the one thus stated." In- be NEAGLE. 135 V. S., 1. Decided 1890. Me. Justice Miller, on behalf of the court, stated the case as follows: — This was an appeal by Cunningham, sheriff of the county of San Joaquin, in the State of California, from a judgment of the Circuit Court of the United States for the Northern District of California, discharging David Neagle from the custody of said sheriff, who held him a prisoner on a charge of murder. On the 16th day of August, 1889, there was presented to Judge Sawyer, the Circuit Judge, of the United States for the Ninth Cir- cuit, embracing the Northern District of California, a petition signed David Neagle, deputy United Staftes marshal, by A. L. Farrish on his behalf. This petition represented that the said Farrish was a deputy marshal duly appointed for the Northern 24 Blackstone's Commentaries, Pardon; Hawkins, book 2, c. 37, 402; 6 Baeon's Abridgment, tit. §§34 and S4. 336 CASES ON CONSTITUTIONAL LAW. District of California by J. C. Franks, who was the marshal of that district. It further alleged that David Neagle was, at the time of the occurrences recited in the petition and at the time of filing it, a duly appointed and acting deputy United States marshal for the same district. It then proceeded to staite that said Neagle was imprisoned, confined, and restrained of his liberty in the county jail in San Joaquin County, in the State of California, by Thomas Cunningham, sheriff of said county, upon a charge of murder, under a warrant of arrest, a copy of which was annexed to the petition. The warrant was as, follows; — "In the Justice's Court of Stockton Township. "State op Califobkia, \ County of San Joaquin, ) "The People of the State of California to any sheriff, constable, marshal, or policeman of said State or of the county of San Joaquin: "Information on oath having been this day laid before me by Sarah A. Terry that the crime of murder, a felony, has been com- mitted within said county of San Joaquin on the 14th day of Au- gust, a. d. 1889, in this, that one David S. Terry, a human being then and there being, was wilfully, unlawfully, feloniously, and with malice aforethought shot, killed, and murdered, and accus- ing Stephen J. Field and David Neagle thereof: You are there- fore commanded forthwith to arrest the above-named Stephen J. Field^ and David Neagle and bring them before me, at my of&ce, in the city of Stockton, or, in case of my absence or inability to act, before the nearest and most accessible magistrate in the county. "Dated at Stockton this 14th day of August, A. D. 1889. "H. V. J. SwAiif, "Justice of the Peace. s The Governor of California, on burning disgrace to the State un- learning that a warrant had been less disavowed." The Attorney- issued for the arrest of Mr. Justice General as promptly responded by Field, promptly wrote to the At- advising the District Attorney that torney-General of the State, Urg- there was "no evidence to impli- Ing "the propriety of at once in- cate Justice Field in said shoot- structing the District Attorney of Ing," and that "public justice de- San Joaquin County to dismiss the mands that the charge against him unwarranted proceeding against be dismissed," which was accord- him," as his arrest "would be a ingly done. IN RE NEAGLE. 327 "Tte defendant, David ISTeagle, having been brought before me on this warrant, is committed for examination to the sheriff of San Joaquin County, California. "Dated August 15, 1889. H. V. J. Swaiit, "Justice of the Peace." The petition then recited the circumstances of a rencontre "between said Neagle and David S. Terry, in which the latter was instantly killed by two shots from a revolver in the hands of the former. The circumstances of this encounter and of what led to it will be considered with more particularity hereafter. The main allegation of this petition was that Neagle, as United States deputy marshal, acting under the orders of Marshal Franks, and in pursuance of instructions from the Attorney-General of the United States, had, in consequence of an anticipated attempt at violence on the part of Terry against the Honorable Stephen J. Field, a justice of the Supreme Court of the United States, been in attendance upon said justice, and was sitting by his side at a breakfast table when a murderous assault was made by Terry on Judge Field, and in defense of the life of the judge the homicide was committed for which Neagle was held by Cunningham. The allegation was very distinct that Justice Field was engaged in the discharge of his duties as circuit justice of the United States for that circuit, having held court at Los Angeles, one of the places at which the court is by law held, and, having left that court, was on his way to San Francisco for the purpose of holding the Circuit Court at that place. The allegation was also very full that Neagle was directed by Marshal Franks to accompany him for the purpose of protecting him, and that these orders of Franks were given in an- ticipation of the assault which actually occurred. It was also stated, in more general terms, that Marshal Neagle, in killing Terry under the circumstances, was in the discharge of his duty as an officer of the United States, and was not, therefore, guilty of a murder, and that his imprisonment under the warrant held by Sheriff Cunningham was in violation of the laws and Consti- tution of the United States, and that he was in custody for an act done in pursuance of the laws of the United States. This petition being sworn to by Farrish, and presented to Judge Saw- yer, he made the following order: "Let a writ of habeas corpus issue in pursuance of the prayer of the within petition, returnable before the United States Cir* cuit Court for the Northern District of California. "Sawtee, Circuit Judge." 328 CASES ON CONSTITUTIONAL LAW. The writ was accordingly issued and delivered to Cunningham, who made the following return: — "County op San Joaqitin, State of California, "Sheeifp's Office. "To the honorable Circuit Court of the United States for the Northern District of California: "I hereby certify and return that before the coming to me of the annexed writ of habeas corpus the said .David Neagle was committed to my custody, and is detained by me by virtue of a warrant issued out of the justice's court of Stockton township, State of California, county of San Joaquin, and by the indorse- ment made upon said warrant. Copy of said warrant and indorse- ment is annexed hereto and made a part of this return. Never- theless, I have the body of the said David Neagle before the hon- orable court, as I am in the said writ commanded. "August 17, 1889. Thomas Cttnningham:, "Sheriff San Joaquin County, California." Various pleadings and amended pleadings were made which do not tend much to the elucidation of the matter before us. Cun- ningham filed a demurrer to the petition for the writ of habeas corpus, and Neagle filed a traverse to the return of the sheriff, which was accompanied by exhibits, the substance of which will be hereafter considered when the case comes to be examined upon its facts. The hearing in the Circuit Court was had before Circuit Judge Sawyer and District Judge Sabin. The sheriff, Cunningham, was represented by G. A. Johnson, Attorney-General of the State of California, and other counsel. A large body of testimony, docu- mentary and otherwise, was submitted to the court, on which, after a full consideration of the subject, the court made the following order: "In the Matter of David Neagle, on habeas corpus. "In the above-entitled matter, the court having heard thetes- -timony introduced on behalf of the petitioner, none having been offered for the respondent, and also the arguments of the counsel for petitioner and respondent, and it appearing to the court that the allegations of the petitioner in his amended answer or traverse to the return of the sheriff of San Joaquin County, respondent herein, are true, and that the prisoner is in custody for an act done in pursuance of a law of the United States, and in custody IN RE NEAGLB. 339 in violation of the Constitution and laws of the United States, it is therefore ordered that petitioner be, and he is hereby, discharged from custody ." From that order an appeal was allowed which brought the case to this court, acompanied by a voluminous record of all the matters which were before the court on the hearing. . . . Me. Justice Miller, after stating the case as above, delivered (the opinion of the court. If it be true, as stated in the order of the court discharging the prisoner, that he was held "in custody for an act done in pursuance of a law of the United States, and in custody in viola- tion of the Constitution and laws of the United States," there does not seem to be any doubt that, under the statute on that subject, he was properly discharged by the Circuit Court. . . . [Here follows a history of the events leading up to the death of Terry.] These are the material circumstances produced in evidence be- fore the Circuit Court on the hearing of this habeas corpus case. It is but a short sketch of a history which is given in over five hundred pages in the record, but we think it is sufficient to enable us to apply the law of the case to the question before us. With- out a more minute discussion of this testimony, it produces upon us the conviction of a settled purpose on the part of Terry and his wife, amounting to a conspiracy, to murder Justice Field. And we are quite sure that if Neagle had been merely a brother or a friend of Judge Field, traveling with him, and aware of all the pre- vious relations of Terry to the judge, — as he was, — of his bitter animosity, his declared purpose to have revenge even to the point of killing him, he would have been justified in what he did in defense of Mr. Justice Field's life, and possibly of his own. But such a justification would be a proper subject for consid- eration on a trial of the case for murder in the courts of the State of California, and there exists no authority in the courts of the United States to discharge the prisoner while held in custody by the State authorities for this offense, unless there be found in aid of the defense of the prisoner some element of power and authority asserted under the government of the United States. This element is said to be found in the facts that Mr. Justice Field, when attacked, was in the immediate discharge of his duty as judge of the Circuit Courts of the United States within Cali- fornia; that the assault upon him grew out of the animosity of Terry and wife, arising out of the previous discharge of his duty 330 CASES ON CONSTITUTIONAL LAW. as circuit justice in the case for which they were committed for contempt of court; and that the deputy marshal of the United States, who killed Terry in defense of Field's life, was charged with a duty under the law of the United States to protect Field from the violence which Terry was inflicting, and which was in- tended to lead to Field's death. To the inquiry whether this proposition is sustained hy law and "the facts which we have recited, we now address ourselves. . . , We have no doubt that Mr. Justice Field when attacked by Terry was engaged in the discharge of his duties as Circuit Justice of the Ninth Circuit, and was entitled to all the protection under those circumstances which the law could give him. It is urged, however, that there exists no statute authorizing any such protection as that which Neagle was instructed to give Judge Field in the present case, and indeed no protection what- ever against a vindictive or malicious assault growing out of the faithful discharge of his official duties, and that the language of section 753 of the Eevised Statutes, that the party seeking the benefit of the writ of habeas corpus must in this connection show that he is "in custody for an act done or omitted in pursuance of a law of the United Sates," makes it necessary that upon this occasion it should be shown that the act for which Neagle is im- prisoned was done by virtue of an act of Congress. It is not sup- posed that any special act of Congress exists which authorizes the marshals or deputy marshals of the United States in express terms to accompany the judges of the Supreme Court through their circuits, and act as a body-guard to them, to defend them against malicious assaults against their persons. But we are of opinion that this view of the statute is an unwarranted restriction of the meaning of a law designed to extend in a liberal manner the bene- fit of the writ of habeas corpus to persons imprisoned for the performance of their duty. And we are satisfied that if it was the duty of Neagle, under the circumstances, a duty which could only arise under the laws of the United States, to defend Mr. Justice Field from a murderous attack upon him, he brings himself within the meaning of the section we have recited. This view of the subject is confirmed by the alternative provision, that he must be in custody "for an act done or omitted in pursuance of a law of the United States or of an order, process, or decree of a court or judge thereof, or is in custody in violation of the Constitution or of a law or treaty of the United States." In the view we take of the Constitution of the United States, any obligation fairly and properly inferrible from that instru- IN RE NEAGLB. 331 ment, or any duty of the marshal to be derived from the general Bcope of his duties under the laws of the United States, is "a law" within the meaning of this phrase. It would be a great reproach to the system of government of the United States, declared to be within its sphere sovereign and supreme, if there is to be found within the domain of its powers no means of protecting the judges, in the conscientious and faithful discharge of their duties, from the malice and hatred of those upon whom their judgments may operate unfavorably. It has in modern times become apparent that the physical health of the community is more efficiently promoted by hygienic and preventive means, than by the skill which is applied to the cure of disease after it has become fully developed. So also the law, which is intended to prevent crime, in its general spread among the community, by regulations, police organization, and otherwise, which are adapted for the protection of the lives and property of citizens, for the dispersion of mobs, for the arrest of thieves and assassins, for the watch which is kept over the community, as well as over this class of people, is more efficient than punishment of crimes after they have been committed. If a person in the situation of Judge Field could have no other guarantee of his personal safety, while engaged in the conscien- tious discharge of a disagreeable duty, than the fact that if he was murdered his murderer would be subject to the laws of a State and by those laws could be punished, the security would be very insufficient. The plan which Terry and wife had in mind of insulting him and assaulting him and drawing him into a de- fensive physical contest, in the course of which they would slay him, shows the little value of such remedies. We do not believe that the government of the United States is thus inefficient, or that its Constitution and laws have left the high officers of the government so defenseless and improtected. . . . [Here are given citations from ex parte Siebold, 100 U. S., 371, 394, and from Tennessee v. Davis, 100 U. S., 257, 263.] Where, then, are we to look for the protection which we have shown Judge Field was entitled to when engaged in the discharge of his official duties? Not to the courts of the United States; because^ as has been more than once said in this court, in the division of the powers of government between the three great de- partments, executive, legislative and judicial, the judicial is the weakest for the purposes of self-protection and for the enforce- ment of the powers which it exercises. The ministerial officers through whom its commands must be executed are marshals of 332 CASES ON CONSTITUTIONAL LAW. the United States, and belong emphatically to the executive de- partment of the government. They are appointed by the Presi- dent, with the advice and consent of the Senate. They are remov- able from office at his pleasure. They are subjected by act of Congress to the supervision and control of the Department of Justice, in the hands of one of the cabinet officers of the Presi- dent, and their compensation is provided by acts of Congress. The same may be said of the district attorneys of the United States, who prosecute and defend the claims of the government in the courts. The legislative branch of the government can only protect the judicial officers by the enactment of laws for that purpose, and the argument we are now combating assumes that no such law has been passed by Congress. If we turn to the executive department of the government, we find a very different condition of affairs. The Constitution, sec- tion 3, Article 2, declares that the President "shall take care that the laws be faithfully executed," and he is provided with the means of fulfilling this obligation by his authority to commission all the officers of the United States, and, by and with the advice and consent of the Senate, to appoint the most important of them and to fill vacancies. He is declared to be commander-in-chief of the army and navy of the United States. The duties which are thus imposed upon him he is further enabled to perform by the recognition in the Constitution, and the creation by acts of Con- gress, of executive departments, which have varied in number from four to five to seven or eight, the heads of which are famil- iarly called cabinet ministers. These aid him in the performance of the great duties of his office, and represent him in a thousand acts to which it can hardly be supposed his personal attention is called, and thus he is enabled to fulfill the duty of his great de- partment, expressed in the phrase that "he shall take care that the laws be faithfully executed." Is this duty limited to the enforcement of acts of Congress or of treaties of the United States according to their express terms, or does it include the rights, duties and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution? One of the most remarkable episodes in the history of our for- eign relations, and which has become an attractive historical inci- dent, is the case of Martin Koszta,a native of Hungary, who, though not fully a naturalized citizen of the United States, had in due form of law made his declaration of intention to become a citizen. While IN RE NEAGLB. 333 in Smyrna he was seized by command of the Austrian consul- general at that place, and carried on board the Hussar, an Aus- trian vessel, where he was held in close confinement. Captain Ingraham, in command of the American sloop-of-war, St. Louis, arriving in port at that critical period, and ascertaining that Koszta had with him his naturalization papers, demanded his sur- render to him, and was compelled to train his guns upon the Aus- trian vessel before his demands were complied with. It was, however, to prevent bloodshed, agreed that Koszta should be plabed in the hands of the French consul subject to the result of diplomatic negotiations between Austria and the United States. The celebrated correspondence between Mr. Marcy, Secretary of State, and Chevalier Hiilsemann, the Austrian minister at Wash- ington, which arose out of this affair and resulted in the release and restoration to liberty of Koszta, attracted a great deal of public attention, and the position assumed by Mr. Marcy met the approval of the country and of Congress, who voted a gold medal to Captain Ingraham for his conduct in the affair. Upon what act of Congress then existing can any one lay his finger in sup- port of the action of our government in this matter? So, if the President or the Postmaster-General is advised that the mails of the United States, possibly carrying treasure, are lia- ble to be robbed and the mail carriers assaulted and murdered in any particular region of country, who can doubt the authority of the President or of one of the executive departments under him to make an order for the protection of the mail and of the per- sons and lives of its carriers, by doing exactly what was done in the case of Mr. Justice Field, namely, providing a sufiicient guard, whether it be by soldiers of the army or by marshals of the United States, with a posse comitatus properly armed and equipped, to secure the safe performance of the duty of carrying the mail wherever it may be intended to go? The United States is the owner of millions of acres of valuable public land, and has been the owner of much more which it has sold. Some of these lands owe a large part of their value to the forests which grow upon them. These forests are liable to depre- dations by people living in the neighborhood, known as timber thieves, who make a living by cutting and selling such timber, and who axe trespassers. But until quite recently, even if there be one now, there was no statute authorizing any preventive measures for the protection of this valuable public property. Has the President no authority to place guards upon the public terri- tory to protect its timber? No authority to seize the timber when 334 CASES ON CONSTLTUTIONAL LAW. cut and found upon the ground? . Has lie no power to take any measures to protect this vast domain? Fortunately we find this question answered by this court in the case of Wells v. Nickles, 104 U. S., 444. That was a case in which a class of men appointed by local land officers, under instructions from the Secretary of the Interior, having found a large quantity of this timber cut down from the forests of the United States and lying where it was cut, seized it. The question of the title to this property com- ing in controversy between Wells and ISTickles, it became essential, to inquire into the authority of these timber agents of the govern- ment thus to seize the timber cut by trespassers on its lands. The court said: "The efEort we have made to ascertain and fix the authority of these timber agents by any positive provision of law has been unsuccessful." But the court, notwithstanding there was no special statute for it, held that the Department of the Interior, acting under the idea of protecting from depredation timber on the lands of the government, had gradually come to assert the'' right to seize what is cut and taken away from them, wherever it can be traced, and in aid of this the registers and receivers of the Land Office had, by instructions from the Secretary of the Inte- rior, been constituted agents of the United States for these pur- poses, with power to appoint special agents under themselves. And the court upheld the authority of the Secretary of the Interior to make these rules and regulations for the protection of the pubhe lands. One of the cases In this court in which this question was pre- sented in the most imposing form is that of United States v. San Jacinto Tin Company, 12'5 U. S., 273, 279, 280. In this ease, a suit was brought in the name of the United States, by order of the Attorney General, to set aside a patent which had been issued for a large body of valuable land, on the ground that it was ob- tained from the government by fraud and deceit practiced upon its officers. A preliminary question was raised by counsel for the defendant, which was earnestly insisted upon, as to the right of the Attorney General or any other officer of the government to- institute such a suit in the absence of any act of Congress author- izing it. It was conceded that there was no express authority given to the Attorney General to institute that particular suit or any suit of that class. The question was one of very great interest, and was very ably argued both in the court below and' in this court. The response of this court to that suggestion conceded that in the acts of Congress establishing the Department of Jus- tice and defining the duties of the Attorney General there was IN RE NBAGLB. 335 -no such express authority, and it was said that there was also no express authority to him to hring suits against debtors of the government upon bonds, or to begin criminal prosecutions, or to institute criminal proceedings in any of. the cases in which the United States, was plaintiff,, yet he was invested with the gen- eral superintenden.ce of all such suits. It was further said: "If the United States, in any particular case, has a just cause for call- ing upon the judiciary of the country, in any of its courts, for relief by setting aside or annulling any of its contracts, its obli- gations, or its most solemn instruments,, the question of the appeal to the judicial tribunals of the country must primarily be decided by the Attorney General of the: United States. That such a power should exist somewhere, and that the United States should not be more helpless in lelieving itself of frauds, impostures, and de- ceptions, than the private individual is hardly open to argument. , . . There must,, then, be an officer or officers of the govern- ment to determine when, the United States shall sue, to decide for what it shall sue, and to be responsible that such suits shall be brought in appropriate cases. The attorneys of the United States in every judicial district are officers of this character, and they are by statute under the immediate supervision, and control of the Attorney-General. How, then, can it be argued that if the United States has been deceived, entrapped,, or defrauded, into the mak- ing, imder the forms of law, of an instrument which injuriously affects its rights of property, or other rights, it cannot bring a suit to avoid the effect of such instrument, thus fraudulently obtained, without a special act of Congress in each case, or with- out some special authority applicable to this class of cases?" The same CLuestion was raised in the earlier case of United States, v. Hughes, 11 How., 552, and decided the same way. We cannot doubt the power of the President to take measures for the protection of a judge of one of the courts of the United States, who, while in the discharge of the duties of his office, is threatened with a personal attack which may probably result ia his death, and we think it clear that where this protection is to be afforded through the civil power, the Department of Justice is the proper one to set' in motion the necessary means of protection. The correspondence already recited in this opinion between the marshal of the Northern District, of California, and the Attorney- General, and the district attorney of the United States for that district, although prescribing no very specific mode of affording this protection by the Attorney-General, is sufficient, we think, to warrant the marshal in taking the steps, which he did take, in 336 CASES ON CONSTITUTIONAL LAW. making the provision which he did make, for the protection and defense of Mr. Justice Field. But there is positive law investing the marshals and their depu- ties with powers which not only justify what Marshal Neagle did in this matter, but which imposed it upon him as a duty. In chapter fourteen of the Revised Statutes of the United States, which is devoted to the appointment and duties of the district attorneys, marshals, and clerks of the courts of the United States, section 788 declares: "The marshals and their deputies shall have, in each State, the same powers, in executing the laws of the United States, as the sheriffs and their deputies in such State may have, by law, in executing the laws thereof." If therefore, a sheriff of the State of California was authorized to do in regard to the laws of California what Neagle did, that is, if he is authorized to keep the peace, to protect a judge from assault and murder, then Neagle was authorized to do the same thing in reference to the laws of the United States. . . . That there is a peace of the United States; that a man assaulting a judge of the United States while in the discharge of his duties violates that peace; that in such ease the marshal of the United States stands in the same relation to the peace of the United States which the sheriff of the county does to the peace of the State of California; are questions too clear to need argument to prove them. That it would be the duty of a sheriff, if one had been present at this assault by Terry upon Judge Field, to prevent this breach of the peace, to prevent this assault, to prevent the murder which was contemplated by it, can- not be doubted. And if, in performing this duty, it became nec- essary for the protection of Judge Field, or of himself, to kill Terry, in a case where, like this, it was evidently a question of the choice of who should be killed, the assailant and violater of the law and disturber of the peace, or the unoffending man who was in his power, there can be no question of the authority of the sheriff to have killed Terry. So the marshal of the United States, charged with the duty of protecting and guarding the judge of the United States court against this special assault upon his per- son and his life, being present at the critical moment, when prompt action was necessary, found it to be his duty, a duty which he had no liberty to refuse to perform, to take the steps which resulted in Terry's death. This duty was imposed on him by the section of the Eevised Statutes which we have cited, in connection with the powers conferred by the State of California upon its peace IN RE NBAGLB. 337 officers, which become, by this statute, in proper cases, transferred as duties to the marshals of the United States. . . . The result at which we have arrived upon this examination is, that in the protection of the person and the life of Mr. Justice Field while in the discharge of his official duties, Neagle was au- thorized to resist the attack of Terry upon him; that Neagle was correct in the belief that without prompt action on his part the assault of Terry upon the judge would have ended in the death of the latter; that such being his well-founded belief, he was jus- tified in taking the life of Terry, as the only means of preventing the death of the man who was intended to be his victim; that in taking the life of Terry, under the circumstances, he was acting under the authority of the law of the United States, and was jus- tified in so doing; and that he is not liable to answer in the courts of California on account of his part in that transaction. We therefore affirm the judgment of the Circuit Court authoriz- ing his discharge from the custody of the sheriff of San Joaquin County. [Mb. Justice Lamah delivered a dissenting opinion in which Chief Justice Fulleb concurred.] Note. — The recent case of Parsons v. United States, 167 U. S., 334, (1897), discusses the President's power of removal, but does not determine the constitutional question involved. The opinion is valuable for its statement of the legislativcj executive, and judi- cial history of the question. VIII. WAR.— MARTIAL LAW. MAETIN V. MOTT. 12 Wheaton, 19, Decided 1827. The case is stated in the opinion of the court, . . . Stoey, J., delivered the opinion of the court. This is a writ of error to the judgment of the court for the trial of impeachments and the correction of errors of the State of New York, being the highest court of that State, and is brought here in virtue of the 25th section of the Judiciary Act of 1789,^ c. 20. The original action was a replevin for certain goods and chattels, to which the original defendant put in an avowry, and to that avowry there was a demurrer, assigning nineteen distinct and special causes of demurrer. Upon a joinder in demurrer, the su- preme court of the State gave judgment against the avowant; and that judgment was affirmed by the high court to which the pres- ent writ of error is addressed. The avowry, in substance, asserts a justification of the taking of the goods and chattels to satisfy a fine and forfeiture imposed upon the original plaintiff by a court-martial, for a failure to enter the service of the United States as a militiaman, when thereto required by the President of the United States, in pursuance of the act of the 28th of February, 1795. It is argued that this avo'my is defective, both in substance and form; and it will be our business to discuss the most material of these objections; and as to others, of which no particular notice is taken, it is to be understood that the court are of opinion that they are either unfounded in fact or in law, and do not require any separate examination. For the more clear and exact consideration of this subject, it may be necessary to refer to the constitution of the United States, and some of the provisions of the act of 1795, The constitution declares that congress shall have power "to provide for calling forth the militia, to execute the laws of the Union, suppress in- surrections, and repel invasions;" and also "to provide for organ- 1 1 Stats, at Large, 85, 338 MARTIN V. MOTT. 339 izing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States." In pursuance of this authority, the act of 1795 has pro- vided, "that whenever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of the militia of the State or States most convenient to the place of danger, or scene of action, as he may judge necessary to repel such invasion, and to issue his order for that purpose to such officer or officers of the militia as he shall think proper." And like provisions are made for the other cases stated in the constitution. It has not been denied here that the act of 1795 is within the constitutional authority of congress, or that congress may not lawfully provide for cases of imminent danger of invasion, as well as for cases where an invasion has actu- ally taken place. In our opinion there is no ground for a doubt on this point, even if it had been relied on, for the power to pro- vide for repelling invasions includes the power to provide against the attempt and danger of invasion, as the necessary and proper means to effectuate the object. One of the best means to repel invasion is to provide the requisite force for action before the invader himself has reached the soil. The power thus confided by congress to the President, is, doubt- less of a very high and delicate nature. A free people are naturally jealous of the exercise of military power; and the power to call the militia into actual service is certainly felt to be one of no ordinary magnitude. But it is not a power which can be executed without a correspondent responsibility. It is, in its terms, a limited power, confined to cases of actual invasion, or of imminent danger of invasion. If it be a limited power, the question arises, by whom is the exigency to be judged of and decided? Is the President the sole and exclusive judge whether the exigency has arisen, or is it to be considered as an open question, upon which every officer to whom the orders of the President are addressed, may decide for himself, and equally open to be contested by every militia-man who shall refuse to obey the orders of the President? We are all of the opinion that the authority to decide whether the exigency has arisen belongs exclusively to the President, and that his decision is conclusive upon all other persons. "We think that this construction necessarily results from the nature of the power itself, and from the manifest object contemplated by the act of congress. The power itself is to be exercised upon sudden emergencies, upon great occasions of state, and under circum- 340 CASES ON CONSTITUTIONAL LAW. stances wtich may he fital to the existence of the Union. A prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. The service is a mili- tary service, and the command of a military nature; and in such cases, every delay, and every obstacle to an efficient and imme- diate compliance, necessarily tend to jeopard the public interests. "While subordinate officers or soldiers are pausing to consider virhether they ought to obey, or are scrupulously weighing the evidence of the facts upon which the commander-in-chief exer- cises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance. If "the power of regulaiting the militia, and of commanding its services in times of insurrection and invasion, are (as it has been emphatically said they are) natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the confederacy,"^ these powers must be so construed as to the modes of their exercise as not to defeat the great end in view. If a superior officer has a right to contest the orders of the President upon his own doubts as to the exigency having arisen, it must be equally the right of every inferior officer and soldier; and any act done by any person in furtherance of such orders would sub- ject him to responsibility in a civil suit, in which his defense musit finally rest upon his ability to establish the facts by com- petent proofs. Such a course would be subversive of all discipline, and expose the best-disposed officers to the chances of ruinous litigation. Besides, in many instances, the evidence upon which the President might decide that there is imminent danger of in- vasion, might be of a nature not constituting strict technical proof, or the disclosure of the evidence might reveal important secrets of state, which the public interest, and even safety, might imperi- ously demand to be kept in concealment. If we look at the language of the act of 1795, every con- clusion drawn from the nature of the power itself is strongly fortified. The words are, "whenever the United States shall be invaded, or be in imminent danger of invasion, &c., it shall be lawful for the President, &c., to call forth such number of the militia, &c., as he may judge necessary to repel such invasion." The power itself is confided to the Executive of the Union, to him who is, by the constitution, "the commander-in-chief of the militia, when called into the actual service of the United States," whose duty it is to "take care that the laws be faithfully executed," 1 The Federalist, No. 29. MARTIN V. MOTT. 341 and whose responsibility for an honest discharge of his of&cial obligations is secured by the highest sanctions. He is neces- sarily constituted the judge of the existence of the exigency in the first instance, and is bound to act according to his belief of the facts. If he does so act, and decides to call forth the militia, his orders for this purpose are in strict conformity with the provi- sions of the law; and it would seem to follow as a necessary con- sequence that every act done by a subordinate officer, in obedi- ence to such orders, is equally justifiable: The law contemplates that, under such circumstances, orders shall be given to carry the power into effect; and it cannot therefore be a correct inference that any other person has a just right to disobey them. The law does not provide for any appeal from the judgment of the Presi- dent, or for any right in subordinate officers to review his deci- sion, and in effect defeat it. Whenever a statute gives a discre- tionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction, that the statute constitutes him the sole and exclusive judge of the existence of those facts. And in the present case, we are all of opinion that such is the true construction of the act of 1795. It is no answer that such a power may be abused, for there is no power which is not susceptible of abuse. The remedy for this, as well as for all other official misconduct, if it should occur, is to be found in the constitution itself. In a free government, the danger must be remote, since in addition to the high qualities which the Executive mUst be presumed to possess, of public vir- tue and honest devotion to the public interests, the frequency of elections, and the watchfulness of the representatives of the na- tion, carry with them all the checks which can be useful to guard against usurpation or wanton tyranny. . . . [Here follows a reference to the New York case of Vanderheyden v. Young, 11 Johns. Rep., 150.] But it is now contended, as it was contended in that case, that notwithstanding the judgment of the President is conclusive as to the existence of the exigency, and may be given in evidence as conclusive proof thereof, yet that the avowry is fatally defective, because it omits to aver that the fact did exist. The argu- ment- is thait the power confided to the President is a limited power, and can be exercised only in the cases pointed out in the statute, and therefore it is necessary to aver the facts which bring the exercise within the purview of the statute. In short, the same principles are sought to be applied to the delegation and exercise of this power intrusted to the Executive of the nation for great 349 CASES ON CONSTITUTIONAL LAW. political purposes, as might be applied to the humbleat officer in the government, acting upon the most narrow and special au- thority. It is the opinion of the court, that this objection can not be maintained. When the President exercises an authority confided to him by law, the presumption is, that it is exercised in pursuance of law. Every public officer is presumed to act in obedience to his duty, until the contrary is shown; and a fortiori, this presumption ought to be favorably applied to the chief mag- istrate of the Union. It is not necessary to aver, that the act which he may rightfully do, was so done. If the fact of the exist- ence of the exigency were averred, it would be traversable, and of course might be passed upon by a jury; and thus the legality of the orders of the President would depend, not on his own judg- ment of the facts, but upon the finding of those facts upon the proofs submitted to a jury. This view of the objection is pre- cisely the same which was acted upon by the supreme court of New York, in the case already referred to, and, in the opinion of this court, with entire legal correctness. ... Upon the whole, it is the opinion of the court that the Judg- ment of the court for the trial of impeachments and the correc- tion of errors ought to be reversed; and that the cause be re- manded to the same court, with directions to cause a judgment to be entered upon the pleadings in favor of the avowant. THE PRIZE CASES. THE BEIG AMY WAEWICK. THE SCHOONEE CEEN- SHAW. THE SCHOONER BEILLIANTE. THE BARK HIAWATHA. 2 Black, 635. Decided 1863. [The facts are sufficiently stated in the opinion of the court.] Mb. Justice Gbiee. There are certain propositions of law which must necessarily affect the ultimate decision of these cases, and many others, which it will be proper to discuss and decide before we notice the special facts peculiar to each. They are, 1st. Had the President a right to institute a block- ade of ports in possession of persons in armed rebellion against THE PRIZE CASES. 343 the government, on the principles of international law, as known and acknowledged among civilized States? 2d. "Was the property of persons domiciled or residing within those States a proper subjeot of capture on the sea as "enemies' property"? I. Neutrals have a right to challenge the existence of a block- ade de facto, and also, the authority of the party exercising the right to institute it. They have a right to enter the ports of a friendly nation for the purposes of trade and commerce, but are bound to recognize the rights of a belligerent engaged in actual war, to use this mode of coercion, for the purpose of subduing the enemy. That a blockade de facto actually existed, and was formally de- clared and notified by the President on the 27th and 30th of April, 1861, is an admitted fact in these cases. That the President, as the Executive Chief of the Government and Commander-in-Chief of the Army and Kavy, was the proper person to make such notification, has not been, and cannot be disputed. The right of prize and capture has its origin in the jus belli, and is governed and adjudged under the law of nations. To legiti- mate the capture of a neutral vessel or property on the high seas, a war must exist de facto, and the neutral must have a knowledge or notice of the intention of one of the parties belligerent to use this mode of coercion against a port, city, or territory, in posses- sion of the other. Let us inquire whether, at the time this blockade was instituted, a state of war existed which would justify a resort to these means of subduing the hostile force. War has been well defined to be, "That state in which a nation prosecutes its right by force." The parties belligerent in a public war are independent nations. But it is not necessary to constitute war, that both parties should be acknowledged as independent nations or sovereign States. A war may exist where one of the belligerents claims sovereign rights as against the other. Insurrection against a government may or may not culminate in an organized rebellion, but a civil war always begins by in- surrection against the lawful authority of the Government. A civil war is never solemnly declared; it becomes such by its acci- dents, — ^the number, power, and organization of the persons who originate and carry it on. When the party in rebellion occupy and hold in a hostile manner a certain portion of territory; have 344 CASES ON CONSTITUTIONAL LAW. declared their independence; have east off their allegiance; have organized armies; have commenced hostilities against their for- mer sovereign, the world acknowledges them as belligerents, and the contest a war. They claim to be in arms to establish thair liberty and independence, in order to become a sovereign State, while the sovereign party treats them as insurgents and rebels who owe allegiance, and who should be punished with death for their treason. The laws of war, as established among nations, have their foun- dation in reason, and all tend to mitigate the cruelties and misery produced by the scourge of war. Hence the parties to a civil war usually concede to each other belligerent rights. They ex- change prisoners, and adopt the other courtesies and rules com- mon to public or national wars. "A civil war," says Vattel, "breaks the bands of society and government, or at least suspends their force and effect; it pro- duces in the nation two independent parties, who consider eachi other as enemies, and acknowledge no common judge. Those two parties, therefore, must necessarily be considered as constituting, at least for a time, two separate bodies, two distinct societies. Having no .common superior to judge between them, they stand in precisely the same predicament as two nations who engage in a contest and have recourse to arms. "This being the ease, it is very evident that the common laws .of war — those maxims of humanity, moderation, and honor — .ought to be observed by both parties in every civil war. Should ;the sovereign conceive he has a right to hang up his prisoners as rebels, the opposite party will make reprisals, &C;, &c.; the war ■will become cruel, horrible, and every day more destruotive to the ©ation." As a civil war is never publicly proclaimed, eo nomine, against, dnsurgents, its actual existence is a fact in our domestic history which the Court is bound to notice and know. The true test of its existence, as found in the writings of the sages of the common law, may be thus summarily stated: "When the iregular course of justice is interrupted by revolt, rebellion, or insurrection, so that the Courts of Justice cannot be kept open, civil war exists and hostilities may be prosecuted on the same foot- ing as if those opposing the Government were foreign enemies invading the land." By the Constitution, Congress alone has the power to declare a national or foreign war. It cannot declare war against a State, or any number .^f States, by virtue of any clause in the Consti- THE PRIZE CASES, 345 tution. The Constituition. confers on the Presiieat the whole Executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States. He has no power to initiate or declare a war either against a foreign nation or a domestic State. But by the Acts of Congress of Febru- ary 28, ITQSj and 3d of March, 1807, he is authorized to call out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States. If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebel- lion, it is none the less a war, although the declaration of it be "unilateral." Lord Stowell (1 Dodson, 247) observes, "It is not the less a war on that account, for war may exist without a decla- ration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only, is not a mere challenge to be accepted or refused at pleasure by the other." The battles of Palo Alto and Eesaca de la Palma had been fought before the passage of the Act of Congress of May 13, 1846, which recognized "a state of war as existing by the act of the Eepublic of Mexico." This act not only provided for the future prosecution of the war, but was itself a vindication and ratifica- tion of the Act of the President in accepting the challenge with- out a previous formal declaration of war by Congress. This greatest of civil wars was not gradually developed by pop- ular commotion, tumultuous assemblies, or local unorganized in- surrections. However long may have been its previous concep- tion, it nevertheless sprung forth suddenly from the parent brain, a Minerva in the full panoply of war. The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact. It is not the less a civil war, with belligerent parties in hostile aiTay, because it may be called an "insurrection" by one side, and the insurgents be considered as rebels or traitors. It is not neces- sary that the independence of the revolted province or State be 346 CASES ON CONSTITUTIONAL LAW. acknowledged in order to constitute it a party belligerent in a war according to the law of nations. Foreign nations acknowledge it as war by a declaration of neutrality. The condition of neutral- ity cannot exist unless there be two bellisrerent parties. In the case of the Santissima Trinidad (7 Wheaton, 337), this court say: "The Government of the United States has recognized the exist- ence of a civil war between Spain and her colonies, and has avowed her determination to remain neutral between the parties. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war." (See also 3 Binn., 352.) As soon as the news of the attack on Fort Sumter, and the or- ganization of a government by the seceding States, assuming to act as belligerents, could become known in Europe, to wit, on the 13th of May, 1861, the Queen of England issued her proclamation of neutrality, "recognizing hostilities as existing between the Gov- ernment of the United States of America and certain States styl- ing themselves the Confederate States of America." This was immediately followed by similar declarations or silent acquies- cence by other nations. After such an official recognition by the sovereign, a citizen of a foreign State is estopped to deny the existence of a war with all its consequences as regards neutrals. They cannot ask a Court to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the Gov- ernment and paralyze its power by subtle definitions and ingeni- ous sophisms. The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this Court are now for the first time desired to pronounce, to wit: That in- surgents who have risen in rebellion against their sovereign, ex- pelled her courts, established a revolutionary government, organ- ized armies, and commenced hostilities, are not enemies because they are traitors; and. a war levied on the government by traitors, in order to dismember and destroy it, is not a war because it is an "insurrection." Whether the President, in fulfilling his duties as Commander- in-chief in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be gov- THE PRIZE CASES. 347 emed by the decisions and acts of the political department of the Government to which this power was intrusted. "He must deter- mine what degree of force the crisis demands." The proclamation of blockade is itself official and conclusive evidence to the Court that a state of war existed which demanded and autherized a re- course to such a measure, under the circumstances peculiar to the case. The correspondence of Lord Lyons with the Secretary of State admits the fact and concludes the question. If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the Gov- ernment to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in an- ticipation of such astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, &c., as if they had been issued and done under the previous express authority and direction of the Congress of the United States." Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well known principle of law, "omnis ratihabitio retrotrdhitur et mandato equiparatur," this ratification has operated to perfectly cure the defect. In the case of Brown vs. United States (8 Cr., 131, 132, 133), Mr. Justice Story treats of this subject, and cites numerous authorities to which we may refer to prove this position, and concludes, "I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them?" Although Mr. Justice Story dissented from the majority of the Court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority. The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal Court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law. 348 CASES ON CONSTITUTIONAL LAW. On this first qnestion therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession of the States in rebellion, which neutrals are bound to regard. II. We come now to the consideration of the second question.. What is included in the term "enemies' property^'? Is the property of all persons residing within the territory of the States now in rebellion, captured on the high eeas, to be treated as "enemies' property" whether the owner be in arms against the Government or not? The right of one belligerent not only to coerce the other by direct force, but also to cripple his resources by the seizure or de- struction of his property, is a necessary result of a state of war. Money and wealth, the products of agriculture and commerce, are said to be the sinews of war, and as necessary in its conduct as numbers and physical force. Hence it is, that the laws of war recognize the right of a belligerent to cut these sinews of the power of the enemy, by capturing his property on the high seas. The appellants contend that the term "enemy" is properly ap- plicable to those only who are subjects or citizens of a foreign State at war with our own. They quote from the pages of the common law, which say, "that persons who wage war against the King may be of two kinds, subjects or citizens. The former are not proper enemies, but rebels and traitors; the latter are those that come properly under the name of enemies." They insist, moreover, that the President himself, in his procla- mation, admits that great numbers of the persons residing within the territories in possession of the insurgent government are loyal in their feelings, and forced by compulsion and the violence of the rebellious and revolutionary party and its "de facto govern- ment" to submit to their laws and assist in their scheme of revolu- tion; that the acts of the usurping government cannot legally sever the bond of their allegiance; they have, therefore, a co-rela- tive right to claim the protection of the government for their per- sons and property, and to be treated, as loyal citizens, till legally convicted of having renounced their allegiance and made war against the Government by treasonably resisting its laws. They contend, also, that insurrection is the act of individuals and not of a government or sovereignty; that the individuals en- gaged are subjects of law. That confiscation of their property can be effected only under a municipal law. That by the law of the land such confiscation cannot take place without the convic- tion of the owner of some offense, and finally that the secession THE PRIZE CASES. 349 ordinances are nullities and ineflEeetual to release any citizen from his allegiance to the national Government, and consequently that the Constitution and laws of the United States are still operative over persons in all the States for punishment as well as protection. This argument rests on the assumption of two propositions, each of which is without foundation on the established law of nations. It assumes that where a civil war exists, the party bellig- erent claiming to be sovereign cannot, for some unknown reason, exercise the rights of belligerents, although the revolutionary party may. Being sovereign, he can exercise only sovereign rights over the other paxty. The insurgent may be killed on the battle- field or by the executioner; his property on land may be confis- cated under the municipal law; but the commerce on the ocean, which supplies the rebels with means to support the war, cannot be made the subject of capture under the laws of war, because it is "unconstitutional!!!" Now, it is a proposition never doubted, that the belligerent party who claims to be sovereign may exercise both belligerent and sovereign rights, (see 4 Cr., 273). Treating the other party as a belligerent and using only the milder modes of coercion which the law of nations has introduced to mitigate the rigors of war, cannot be a subject of complaint by the party to whom it is accorded as a grace or granted as a necessity. We have shown that a civil war such as that now waged between the Northern and Southern States is properly conducted according to the humane regulations of public law as regards capture on the ocean. Under the very peculiar Constitution of this Government, al- though the citizens owe supreme allegiance to the Federal Gov- ernment, they owe also a qualified allegiance to the State in which they are domiciled. Their persons and property are subject to its laws. Hence, in organizing this rebellion, they have acted as States claiming to be sovereign over all persons and property within their respective limits, and asserting a right to absolve their citizens from their allegiance to the Federal Government. Several of these States have combined to form a new confederacy, claiming to be acknowl- edged by the world as a sovereign state. Their right to do so is now being decided by wager of battle. The ports and territory of each of these States are held in hostility to the General Govern- ment. It is no loose, unorganized insurrection, having no defined boundary or possession. It has a boundary marked by lines of bayonets, and which can be crossed only by force — south of this 350 CASES ON CONSTITUTIONAL LAW. line is enemies' territory, because it is claimed and held in posses- eion by an organized, hostile and belligerent power. All persons residing within this territory whose property may be used to increase the revenues of the hostile power are, in this contest, liable to be treated as enemies, though not foreigners. They have cast ofE their allegiance and made war on their Govern- ment, and are none the less enemies because they are traitors. But in defining the meaning of the term "enemies' property," we will be led into error if we refer to Fleta and Lord Coke for their definition of the word "enemy." It is a technical phrase peculiar to prize courts, and depends upon principles of public policy as distinguished from the common law. Whether property be liable to capture as "enemies' property" does not in any manner depend on the personal allegiance of the owner. "It is the illegal traffic that stamps it as 'enemies' prop- erty.' It is of no consequence whether it belongs to an ally or a citizen. 8 Cr., 384. The owner, jpro hac vice, is an enemy." 3 Wash. C. C. R., 183. The produce of the soil of the hostile country, as well as other property engaged in the commerce of the hostile power, as the source of its wealth and strength, are always regarded as legiti- mate prize, without regard to the domicile of the owner, and much more so if he reside and trade within their territory. III. We now proceed to notice the facts peculiar to the several cases submitted for our consideration. The principles which have just been stated apply alike to all of them. . . . [Me. Justice Nelson delivered a dissenting opinion, m which Chief Justice Taney and Justices Cateon and Clifeoed con- curred.] Note. — The decision in the Prize Cases was important not only for the legal points determined, but for the complications that would have ensued had the decision been different. The gravity of the situation is set forth in the following letter of Eichard H. Dana, Jr., who was one of the counsel for the Government. He said, "The Government is carrying on a war. It is exerting all the powers of war. Yet the claimants of the captured vessels not only seek to save their vessels by denying that they are liable to capture, but deny the right of the Government to exercise war powers, — deny that this can be, in point of law, a war. So the judiciary is actually, after a war of twenty-three months' duration, to decide whether the Government has the legal capacity to exert EX PARTE MILLIGAN. 351 these war powers. . . . Contemplate, my dear sir, the possi- bility of the Supreme Court deciding that this blockade is illegall What a position it would put us in before the world, whose com- merce we have been illegally prohibiting, whom we have unlaw- fully subjected to cotton famine, and domestic dangers and dis- tress for two years! It would end the war, and where it would leave us with neutral powers, it is fearful to contemplate! Yet eueh an event is legally possible, — I do not think it probable, hardly possible, in fact. But last year I think there was danger of such a result when the blockade was new, and before the three new Judges were appointed." C. F. Adams, Life of Kiehard Henry Dana, II, 267. Quoted by Carson, The Supreme Court of the United States, 385. That the fears expressed in this letter were not groundless ap- pears from the fact that a majority of the court as it was consti- tuted before the appointment of the new judges dissented from the judgment rendered in this case. Ex PAETB MILLIGAK 4 Wallace, 2. Decidea 1866. This case came before the court upon a certificate of division from the judges of the Circuit Court for Indiana, on a petition for discharge from unlawful imprisonment. . . . [The facts are sufficiently stated in the opinion of the court.] Me. JtrsTiCB Davis delivered the opinion of the court. On the 10th day of May, 1865, Lambdin P. Milligan presented a petition to the Circuit Court of the United States for the District of Indiana, to be discharged from an alleged unlawful imprison- ment. The case made by the petition is this: Milligan is a citizen of the United States; has lived for twenty years in Indiana; and, at the time of the grievances complained of, was not, and never had been in the military or naval service of the United States. On the 5th day of October, 1864, while at home, he was arrested by order of General Alvin P. Hovey, commanding the military Strict of Indiana; and has ever since been kept in close confine- ment. On the 31st day of October, 1864, he was brought before a 353 CASES ON CONSTITUTIONAL LAW. military commission, convened at Indianapolis, by order of Gen- eral Hovey, tried on certain charges and specifications; found guilty, and sentenced to be hanged; and the sentence ordered to be executed on Friday, the 19th day of May, 1865, On the 2d day of January, 1865, after the proceedings of the military commission were at an end, the Circuit Court of the United States for Indiana met at Indianapolis and empanelled a grand jury, who were charged to inquire whether the laws o£ the United States had been violated; and, if so, to make present- ments. The court adjourned on the 27th day of January, having prior thereto discharged from further service the grand jury, who did not find any bill of indictment or make any presentment against Milligan for any offense whatever; and in fact, since his imprisonment, no bill of indictment has been found or present- ment made against him by any grand jury of the United States. Milligan insists that said military commission had no jurisdic- tion to try him upon the charges preferred, or upon any chargea whatever; because he was a citizen of the United States and the State of Indiana, and had not been, since the commencement of the late Eebellion, a resident of any of the States whose citizens were aiTayed against the government, and that the right of trial by jury was guaranteed to him by the Constitution of the United States. The prayer of the petition was, that under the act of Congress, approved March 3d, 1863, entitled, "An act relating to habeas corpus and regulating judicial proceedings in certain cases," he may be brought before the court, and either turned over to the proper civil tribunal to be proceeded against according to the law of the land or discharged from custody altogether. With the petition were filed the order for the commission, the charges and specifications, the findings of the court, with the order of the War Department reciting that the sentence was approved by the President of the United States, and directing that it be carried into execution without delay. The petition was presented and filed in open court by the counsel for Milligan; at the same time the District Attorney of the United States for Indiana ap- peared, and, by the agreement of counsel, the application was sub- mitted to the court. The opinions of the judges of the Circuit Court were opposed on three questions, which are certified to the Supreme Court: 1st. "On the facts stated in said petition and exhibits, ought a writ of habeas corpus to be issued?" 2d. "On the facts stated in said petition and exhibits, ought the EX PARTE MILLIGAN. 353 said Lambdin P. Milligan to be discharged from custody as in said petition prayed?" 3d. "Whether, upon the facts stated in said petition and ex- hibits, the military commission mentioned therein had jurisdic- tion legally to try and sentence said Milligan in manner and form as in said petition and exhibits is stated?" The importance of the main question presented by this record cannot be overstated; for it involves the very framework of the government and the fundamental principles of American liberty. During the late wicked Eebellion, the temper of the times did not allow that calmness in deliberation and discussion so neces- sary to a correct conclusion of a purely judicial question. Then, considerations of safety were mingled with the exercise of power; and feelings and interests prevailed which are happily terminated. Now that the public safety is assured, this question, as well as all others, can be discussed and decided without passion or the admix- ture of any element not required to form a legal judgment. We approach the investigation of this case, fully sensible of the mag- nitude of the inquiry and the necessity of full and cautious de- liberation. But we are met with a preliminary objection. It is insisted, that the Circuit Court of Indiana had no authority to certify these questions; and that we are without jurisdiction to hear and de- termine them. The sixth section of the "Act to amend the judicial system of the United States," approved April 29, 1803, declares "that when- ever any question shall occur before a Circuit Court upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party or their counsel, be stated under the direction of the judges and certified under the seal of the court to the Supreme Court at their next session to be held thereafter; and shall by the said court be finally decided: And the decision of the Supreme Court and their order in the premises shall be re- mitted to the Circuit Court and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, That nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, further proceedings can be had without prejudice to the merits." It is under this provision of law that a Circuit Court has author- ity to certify any question to the Supreme Court for adjudication. The inquiry, therefore, is whether the case of Milligan is brought within its terms. 354 CASES ON CONSTITUTION'AL LAW. It was admitted at the bar that the Circuit Court had jurisdic- tion to entertain the application for the writ of habeas corpus and to hear and determine it; and it could not be denied; for the power is expressly given in the 14th section of the Judiciary Act of 1789, as well as in the later act of 1863. Chief Justice Mar- shall, in Bollman's case,^ construed this branch of the Judiciary Act to authorize the courts as well as the judges to issue the writ for the purpose of inquiring into the cause of the commitment; and this construction has never been departed from. But it is maintained with earnestness and ability that a certificate of di- vision of opinion can occur only in a cause; and that the pro- ceeding by a party, moving for a writ of habeas corpus, does not become a cause until after the writ has been issued and a return made. Independently of the provisions of the act of Congress of March 3, 1863, relating to habeas corpus, on which the petitioner bases his claim for relief, and which we will presently consider, can this position be sustained? It is true that it is usual for a court on application for a writ of habeas corpus, to issue the writ, and on the return, to dispose of the case; but the court can elect to waive the issuing of the writ and consider whether, upon the facts presented in the peti- tion, the prisoner, if brought before it, could be discharged. One of the very points on which the case of Tobias "Watkins, reported in 3 Peters,^ turned, was, whether, if the writ has issued, the peti- tioner would be remanded upon the case which he had made. The Chief Justice, in delivering the opinion of the court, said: "The cause of imprisonment is shown as fully by the petitioner as it could appear on the return of the writ; consequently the writ ought not to be awarded if the court is satisfied that the prisoner would be remanded to prison." The judges of the Circuit Court of Indiana were, therefore, warranted by an express decision of this court in refusing the writ, if satisfied that the prisoner on his own showing was right- fully detained. But it is contended, if they differed about the lawfulness of the imprisonment, and could render no judgment, the prisoner is remediless; and cannot have the disputed question certified under the act of 1802. His remedy is complete by writ of error or ap- peal, if the court renders a final judgment refusing to discharge him; but if he should be so unfortunate as to be placed in the 1 4 tiraacb, 75. a Page 193. EX PARTE MILLIGAN. 355 predicament of having the court divided on the question whether he should live or die, he is hopeless aoid without remedy. He wishes the vital question settled, not hy a single judge at his chambers, but by the highest tribunal known to the Constitution; and yet the privilege is denied him; because the Circuit Court consists of two judges instead of one. Such a result was not in the contemplation of the legislature of 1802; and the language used by it cannot be construed to mean any such thing. The clause under conside'ration was introduced to further the ends of justice, by obtaining a speedy settlement of important questions where the judges might be opposed in opinion. The act of 1802 so changed the judicial system that the Circuit Court, instead of three, was composed of two judges; and with- out this provision or a kindred one, if the judges difEered, the diiference would remain, the question be unsettled, and justice denied. The decisions of this court upon the provisions of this section have been numerous. In United States v. Daniel,^ the court, in holding that a division of the judges on a motion for a new trial could not be certified, say: "That the question must be one which arises in a cause depending before the court relative to a proceeding belonging to the cause." Testing Milligan's case by this rule of law, is it not apparent that it is rightfully here; and that we are compelled to answer the questions on which the judges below were opposed in opinion? If, in the sense of the law, the proceeding for the writ of habeas corpus was the "cause" of the party applying for it, then it is evident that the "cause" was pending before the court, and that the questions certified arose out of it, belonged to it, and were matters of right and not of dis- cretion. But it is argued that the proceeding does not ripen into a cause, until there are two parties to it. This we deny. It was the cause of Milligan when the petition was presented to the Circuit Court. It would have been the cause of both parties, if the court had issued the writ and brought those who held Milligan in custody before it. Webster defines the word "cause" thus: "A suit or action in court; any legal process which a party institutes to obtain his demand, or by which he seeks his right, or supposed right" — ^and he says, "this is a legal, scriptural, and popular use of the word coinciding nearly with case, from cado, and action, from ago, to urge and drive." In any legal sense, action, suit, and cause, axe convertible terms. 8 6 Wheaton, 542. 356 CASES ON CONSTITUTIONAL LAW. Milligan supposed he had a right to test the validity of his trial and sentence; and the proceeding which he set in operation for that purpose was his "cause" or "guit " It was the only one hy which he could recover his llherty. He was powerless to do more; he could neither instruct the judges nor control their action, and should not suffer, because, without fault of his, they were unable to render a judgment. But the true meaning to the term "suit" has been given by this eouri One of the questions in Weston v. City Council of Charleston* was whether a writ of prohibition was a suit; and Chief Justice Marshall says: "The term is cer- tainly a comprehensive one, and is understood to apply to any proceeding in a court of justice by which an individual pursues that remedy which the law affords him." Certainly, Milligan pursued the only remedy which the law afforded him. Again in Cohens v. Virginia,^ he says: *'In law language a suit is the prosecution of some demand in a court of justice." Also, "To commence a suit is to demand something by the institution of process in a court of justice; and to prose- cute the suit is to continue that demand." When Milligan de- manded his release by the proceeding relaiting to habeas corpus, he comm.enced a suit; and he has since prosecuted it in all the ways known to the law. One of the questions in Holmes v. Jenni- son et al.,° was, whether under the 25th section of the Judiciary Act a proceeding for a wriffc of habeas corpus was a "suit." Chief Justice Taney held, that, "if a party is unlawfully imprisoned, the writ of habeas corpus is his appropriate legal remedy. It is his suit in coujt to recover his liberty." There was much diversity of opinion on another ^ound of jurisdiction; but that, in the sense of the 35th section of the Judiciary Act, the proceeding by habeas corpus was a suit, was not controverted by any except Bald- win, Justice, and he thought that "suit" and "cause" as used in the section, mean the same thing. The court do not say that a return must be made and the parties appear and begin to try the case before it is a suit. When the petition is filed and the writ prayed for, it is a suit, — ^the suit of the party maljing the application. If it is a suit under the 25th section of the Judiciary Act when the proceedings are begun, it is, by all the analogies of the law, equally a suit under the 6th section of the act of 1803. But it is argued, that there must be two parties to the suit, be- <2 Peters, 449. 6 14 Peters, 540. 5 6 Wheaton, 264. EX PARTE MILLIGAN. 357 cause tlie point is to be stated upon the request of "either party or their counsel." Such a literal and technical construction would defeat the very purpose the legislature had in view, which was to enable any party to bring the case here, when the point in controversy was a matter of right and not of discretion; and the words "either party," in order to prevent a failure of justice, must be construed as words of enlargement, and not of restriction. Although this case is here ex parte, it was not considered by the coiirt below without notice having been given to the party supposed to have an interest in the detention of the prisoner. The statements of the record show that this is not only a fair, but Conclusive inference. When the counsel for Milligan presented to the court the petition for a writ of habeas corpusj Mr. Haniia, th^ District Attorney for Indi- ana, also appeared; and, by agreement, the applicatioii was sub- mitted to the court, who took the case under adviserdent, and on the next day announced their inability to agree, and made the certificate. It is clear that Mr. Hanna did not represent the peti- tioner, and why is his appearance entered? It admits of no other solution than this, — ^that he was informed of the application, and appeared on behalf of the government to contest it. The govern- ment was the prosecutor of Milligan^ who claimed that his impris- onment was illegal; and sought, in the only way he could, to recover his liberty. The case was a grave one; and the court, unquestionably, directed that the law officer of the government should be informed of it. He very properly appeared, and, as the facts were uncontroverted and the difficulty was in the application of the law, there was no useful purpose to be obtained in issuing the writ. The cause was, therefore, submitted to the court for their consideration and determination. But Milligan claimed his discharge froni custody by virtue of the act of Congress "relating to habeas corpus, and regulating judicial proceedings in certain cases," approved March 3, 1863. Did that act confer jurisdiction on the Circuit Court of Indiana to hear this case? In interpreting a law, the motives which must have operated with the legislature in passing it are proper to be considered. This law was passed in a time of great national peril, when our heritage of free government was in danger. An armed rebellion against the national authority, of greater proportions thain history affords an example of, was raging; and the public safety required that the privilege of the writ of habeas corpus should be suspended. The President had practically suspended it, and detained suspected 358 CASES ON CONSTITUTIONAL LAW. persons in custody without trial; but his authority to do this -was questioned. It was claimed that Congress alone could exercise this power; and that the legislature, and not the President, should judge of the political considerations on which the right to sus- pend it rested. The privilege of this great writ had never before been withheld from the citizen; and as the exigence of the times demanded immediate action, it was of the highest importance that the lawfulness of the suspension should be fully established. It was under these circumstances, which were such as to arrest the attention of the country, that this law was passed. The Presi- dent was authorized by it to suspend the privilege of the writ of habeas corpus, whenever, in his judgment, the public safety re- quired; and he did, by proclamation, bearing date the 15th of September, 1863, reciting, among other things, the authority of this statute, suspend it. The suspension of the writ does not authorize the arrest of any one, but simply denies to one arrested the privilege of this writ in order to obtain his liberty. It is proper, therefore, to inquire under what circumstances the courts could rightfully refuse to grant this writ, and when the citizen was at liberty to invoke its aid. The second and third sections of the law are explicit on these points. The language used is plain and direct, and the meaning of the Congress cannot be mistaken. The public safety demanded, if the President thought proper to arrest a suspected person, that he should not be required to give the cause of his detention on return to a writ of habeas corpus. But it was not contemplated that such person should be detained in custody beyond a certain fixed period, unless certain judicial proceedings, known to the common law, were commenced against him. The Secretaries of State and War were directed to furnish to the judges of the courts of the United States a list of the names of all parties, not prisoners of war, resident in their respective jurisdictions, who then were or afterwards should be held in custody by the authority of the President, and who were citizens of States in which the admin- istration of the laws in the Federal tribunals was unimpaired. After the list was furnished, if a grand jury of the district con- vened and adjourned, and did not indict or present one of the persons thus named, he was entitled to his discharge; and it was the duty of the judge of the court to order him brought before him to be discharged, if he desired it. The refusal or omission to furnish the list could not operate to the injury of any one who was not indicted or presented by the grand jury; for, if twenty days had elapsed from the time of his arrest and the termination EX PARTE MILLIGAN. 359 of the session of the grand jury, he was equally entitled to his discharge as if the list were furnished; and any credible person, on petition verified by affidavit, could obtain the judge's order for that purpose. Milligan, in his application to be released from imprisonment, averred the existence of every fact necessary under the terms of this law to give the Circuit Court of Indiana jurisdiction. If he was detained in custody by the order of the President, otherwise than as a prisoner of war; if he was a citizen of Indiana and had never been in the military or naval service, and the grand jury of the district had met, after he had been arrested, for a period of twenty days, and adjourned without taking any proceedings against him, then the court had the right to entertain his petition and determine the lawfulness of his imprisonment. Because the word "court" is not found in the body of the second section, it was argued at the bar, that the application should have been made to a judge of the court, and not to the court itself; but this is not so, for power is expressly conferred in the last proviso of the section on the court equally with a judge of it to discharge from imprisonment. It was the manifest design of Congress to secure a certain remedy by which any one, deprived of liberty, could obtain it, if there was a judicial failure to find cause of ofEense against him. Courts are not, always, in session, and can adjourn on the discharge of the grand jury; and before those who are in confinement could take proper steps to procure their liberation. To provide for this contingency, authority was given to the judges out of court to grant reHef to any party who could show, that, imder the law, he should be no longer restrained of his liberty. It was insisted that Milligan's case was defective because it did not state that the list was furnished to the judges; and, there- fore, it was impossible to say under which section of the act it was presented. It is not easy to see how this omission could affect the ques- tion of jurisdiction. Milligan could not know that the list was furnished, unless the judges volunteered to tell him; for the law did not require that aay record should be m«de of it or anybody but the judges informed of it. Why aver the fact when the truth of the matter was apparent to the court without an averment? How can Milligan be harmed by the absence of the averment, when he states that he was under arrest for more than sixty days before the court and grand jury, which should have considered his case, met at Indianapolis? It is apparent, therefore, that under the Habeas Corpus Act of 1863 the Circuit Court of Indiana had com- 360 CASES ON CONSTITUTIONAL LAW. plete jurisdiction to adjudicate upon this case, and, if the judges could not agree on questions vital to the progress of the cause, they had the authority (as we have shown in a previous part of this opinion), and it was their duty to certify those questions of disagreement to this court for final decision. It was argiied that a final decision on the questions presented ought not to be madf, because the parties who were directly concerned in the arrest and detention of Milligan, were not before the court; and their rights might be prejudiced by the answer which should be given to those questions. But this court cannot know what return will be made to the writ of habeas corpus when issued; and it is very clear that no one is concluded upon any question that may be raised to that return. In the sense of the law of 1803 which authorized a certifi- cate of division, a final decision means final upon the points certified; final upon the court below, so that it is estopped from any adverse ruling in all the subsequent proceedings of the cause. But it is said that this case is ended, as the presumption is, that Milligan was hanged in pursuance of the order of the President. Although we have no judicial information on the subject, yet the inference is that he is alive; for otherwise learned counsel would not appear for him and urge this court to decide his case. It can never be in this country of written constitution and laws, with a judicial department to interpret them, that any chief magistrate would be so far forgetful of his duty, as to order the execution of a man who denied the jurisdiction that tried and con- victed him; after his case was before Federal judges with power to decide it, who, being unable to agree on the grave questions involved, had, according to known law, sent it to the Supreme Court of the United States for decision. But even the suggestion is injurious to the Executive, and we dismiss it from further con- sideration. There is, therefore, nothing to hinder this court from an investigation of the merits of this controversy. The controlling question in the case is this: Upon the facts stated in Milligan's petition, and the exhibits filed, had the mili- tary commission mentioned in it jurisdiction, legally, to try and sentence him? Milligan, not a resident of one of the rebellious States, or a prisoner of war, but a citizen of Indiana for twenty years past, and never in the military or naval service, is, while at his home, arrested by the military power of the United States, im- prisoned, and, on certain criminal charges preferred against him, (tried, convicted, and sentenced to be hanged by a military commis- sion, organized under the direction of the military commander of EX PARTE MILLIGAN. 361 the military district of Indiana. Had this tribunal the legal power and authority to try and punish this man? Ko graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole people; for it is the birthright of every American citizen when, charged with crime, to be tried and punished according to law. The power of punishment is alone through the means which the laws have pro- vided for that purpose, and if they are ineffectualj there is an im- munity from punishment, no matter how great an offender the individual may be, or how much his crimes may have shocked the sense of justice of the country, or endangered its safety. By the protection of the law human rights are secured; withdraw that protection, and they are at the mercy of wicked rulers, or the clamor of an excited people. If there was law to justify this mili- tary trial, it is not our province to interfere; if there was not, it is our duty to declare the nullity of the whole proceedings. The decision of this question does not depend on argument or judicial precedents, numerous and highly illustrative as they are. These precedents inform us of the extent of the struggle to preserve liberty, and to relieve those in civil life from military trials. The founders of our government were familiar with the history of that struggle, and secured in a written Constitution every right which the people had wrested from power during a contest of ages. By that Constitution and the laws authorized by it this question must be determined. The provisions of that instrument on the admin- istration of criminal justice are too plain and direct to leave room for misconstruction or doubt of th-eir true meaning. Those applica- ble to this case are found in that clause of the original Constitution which says, "That the trial of all crimes, except in case of im- peachment, shall be by jury;" and in the fourth, fifth, and sixth articles of the amendments. The fourth proclaims the right to be secure in person and effects against unreasonable search and seizure; and directs that a judicial warrant shall not issue "with- out proof of probable cause supported by oath or affirmation." The fifth declares "that no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger, nor be deprived of life, liberty, or property, without due process of law." And the sixth guarjaitees the right of trial by jury, in such manner and with such regulations that with up- right judges, impartial juries, and an able bar, the innocent will be saved and the guilty pumshed. It is in these words: "In all 363 CASES UN CONSTITUTIONAL LAW. criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained hy law, and to be informed of the nature and cause of the accusation, to be 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." These securities for personal liberty thus embodied, were such as wisdom and experience had demonstrated to be nec- essary for the protection of those accused of crime. And so strong was the sense of the country of their importance, and so jealous were the people that these rights, highly prized, might be denied them by implication, that when the original Constitution was pro- posed for adoption it encountered severe opposition; and, but for the belief that it would be so amended as to embrace them, it would never have been ratified. Time has proven the discernment of our ancestors; for even these provisions, expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under re- straint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of consti- tutional liberty would be in peril, unless established by irre- pealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its pro- tection all classes of men, at all times, and under all circum- stances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of govern- ment. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence; as has been happily proved by the result of the great efiEort to throw ofE its just authority. Have any of the rights guaranteed by the Constitution been violated in the case of Milligan? and if so, what are they? Every trial involves the exercise of judicial power; and from what source did the military commission that tried him derive EX PARTE MILLIGAN. 3G3 their authority? Certainly no part of the judicial power of the cbuntry was conferred on them; because the Constitution ex- pressly vests it "in one supreme court and such inferior courts as the Congress may from time to time ordain and establish," and it is not pretended that the commission was a court ordained and established by Congress. They cannot justify on the mandate of the President, because he is controlled by law, and has his appro- priate sphere of duty, which is to execute, not to make, the laws; and there is "no unwritten criminal code to which resort can be had as a source of jurisdiction." But it is said that the jurisdiction is complete under the "laws and usages of war." It can serve no useful purpose to inquire what those laws and usages are, whence they originated, where found, and on whom they operate; they can never be applied to citizens in States which have upheld the authority of the government, and where the courts are open and their process unobstructed. This court has judicial knowledge that in Indiana the Federal authority was always un- opposed, and its courts always open to hear criminal accusations and redress grievances; and no usage of war could sanction a mili- would have been false to the trust reposed in them. They knew — the history of the world told them — ^the nation they were founding, be its existence short or long, would be involved in war; how often or how long continued, human foresight/'could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For this, and other equally weighty reasons, they secured the inheritance they had fought to maintain, by incor- porating in a written Constitution the safeguards which time had proved were essential to its preservation. Not one of these safe- guards can the President, or Congress, or the Judiciary disturb, except the one concerning the writ of habeas corpus. It is essential to the safety of every government that in a great crisis, like the one we have just passed through, there should be a power somewhere of suspending the writ of habeas corpus. In every war, there are men of previously good character, wicked enough to counsel their fellow-citizens to resist the measures deemed necessary by a good government to sustain its just author- ity and overthrow its enemies; and their influence may lead to dangerous combinations. In the emergency of the times, an im- mediate public investigation according to law may not be pos- sible; and yet the peril to the country may be too imminent to suffer such persons to go at large. Unquestionably, there is then an exigency which demands that the government, if it should Bee fit, in the exercise of a proper discretion, to make arrests, should not be required to produce the persons arrested in answer to a writ of habeas corpus. The Constitution goes no further. It does not say after a writ of habeas corpus is denied a citizen, that he shall be tried otherwise than by the course of the common law; if it had intended this result, it was easy by the use of direct words to have accomplished it. The illustrious men who framed that instrument were guarding the foundations of civil liberty against the abuses of unlimited power; they were full of wisdom, and the lessons of history informed them that a trial by an estab- lished court, asisted by an impartial jury, was the only sure way EX PARTE MILLIGAN. 367 of protecting the citizen against oppression and -wrong. Know- ing tMs, they limited the suspension to one great right, and left the rest to remain forever inviolable. But, it is insisted that the safety of the country in time of war demands that this broad claim for martial law shall be sustained. If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the cost of preserva- tion. Happily, it is not so. It will be borne in mind that this is not a question of the power to proclaim martial law, when war exists in a community and the courts and civil authorities are overthrown. Kor is it a ques- tion what rule a military commander, at the head of his army, can impose on States in rebellion to cripple their resources and quell the insurrection. The jurisdiction claimed is much more extensive. The necessities of the service, during the late Eebel- lion, required that the loyal States should be placed within the limits of certain military districts and commanders appointed in them; and, it is urged, that this, in a military sense, constituted them the theatre of military operations; and, as in this case, Indiana had been and was again threatened with invasion by the enemy, the occasion was furnished to establish martial law. The conclusion does not follow from the premises. If armies were collected in Indiana, they were to be employed in another locality, where the laws were obstructed and the national authority dis- puted. On her soil there was no hostile foot; if once invaded, that invasion was at an end, and with it all pretext for martial law. Martial law cannot arise from a threatened invasion. The necessity must be actual and present; the invasion real, such as effectually closes the courts and deposes the civil administra- tion. It is difficult to see how the safety of the country required mar- tial law in Indiana. If any of her citizens were plotting treason, the power of arrest could secure them, until the government was prepared for their trial, when the courts were open and ready to try them. It was as easy to protect witnesses before a civil as a military tribunal; and as there could be no wish to convict, except on sufficient legal evidence, surely an ordained and estab- lished court was better able to judge of this than a military tribunal composed of gentlemen not trained to the profession of the law. It follows, from what has been said on this subject, that there are occasions when martial rule can be properly applied. If, in foreign invasion or civil war, the courts are actually closed, and 368 CASES ON CONSTITUTIONAL LAW, it is impossible to administer criminal justice according to law> then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its dura- tion; for, if this government is continued after the courts aie reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in the proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war. Because, during the late Eebel- lion it could have been enforced in Virginia, where the national authority was overturned and the courts driven out, it does not follow that it should obtain in Indiana, where that authority was never disputed, and justice was always administered. And so in the case of a foreign invasion, martial rule may become a neces- sity in one State, when, in another, it would be "mere lawless violence." We are not without precedents in English and American his- tory illustrating our views of this question; but it is hardly neces- sary to make particular reference to them. From the first year of the reign of Edward the Third, when the Parliament of England reversed the attainder of the Earl of Lancaster, because he could have been tried by the courts of the realm, and declared, "that in time of peace no man ougM to be adjudged to d«ath for treason or any other ofEense withr out being arraigned and held to answer; and that regularly when the king's courts are open it is a time of peace in judgment of law," down to the present day, martial law, as claimed in this case, has been condemned by all respectable English jiicrists as contrary to the fundamental laws of the land, and subversive of the liberty of the subject. During the present century, an instructive debate on this ques- tion occurred in Parliament, occasioned by the trial and convic- tion by court-martial, at Demerara, of the Eev. John Smith, a missionary to the negroes, on the alleged ground of aiding and abetting a formidable rebellion in that colony. Those eminent statesmen. Lord Brougham and Sir James Mackintosh, partici- pated in that debate; and denounced the trial as illegal; because it did not appear that the courts of law in Demerara could not try offenses, and that "when the laws can act, every other mode qf punishing supposed crimes is itself an enormous crime." EX PARTE MILLIGAN. 3G9 So sensitive were our EeTolutionary fathers on this subject, although Boston was ahnost in a state of siege, when General Gage issued his proclamation of martial law they spoke of it as an "attempt to supersede the course of the common law, and instead thereof to publish and order the use of martial law." The Virginia Assembly, also, denounced a similar measure on the part of Governor Dunmore "as an assumed power, which the king himself cannot exercise; because it annuls the law of the land and introduces the most execrable of all systemSj martial law." In some parts of the country, during the war of 1813, our officers made arbitrary arrests and, by military tribunals, tried citizens who were not in the military service. These arrests and trials, when brought to the notice of the courts, were uniformly condemned as illegal. The cases of Smith v. Shaw, and McCon- nell V. Hampden (reported in 12 Johnson,)^ are illustrations, which we cite, not only for the principles they determine, but on account of the distinguished jurists concerned in the decisions, one of whom for many years occupied a seat on this bench. It is contended, that Luther v. Borden, decided by this court, is an authority fbr the claim of martial law advanced in this case. The decision is misapprehended. That case grew out of the at- tempt in Ehode Island to supersede the old colonial government by a revolutionary proceeding. Ehode Island, until that period, had no other form of local government than the charter granted by King Charles II in 1663; and as that limited the right of suffrage, and did not provide for its own amendment, many citi- zens became dissatisfied, because the legislature would not afford the relief in their power; and without the authority of law, formed a new and independent constitution, and proceeded to assert its authority by force of arms. The old government re- sisted this; and as the rebellion was formidable, called out the militia to subdue it, and passed an act declaring martial law. Bor- den, in the military service of the old government, broke open the house of Luther, who supported the new, in order to arrest him. Luther brought suit against Borden; and the question was, whether, under the constitution and laws of the state, Borden was justified. This court held that a state "may use its mili- tary power to put down an armed insurrection too strong to be controlled by the civil authority;" and, if the legislature of Ehode Island thought the peril so great as to require the use of its military forces and the declaration of martial law, there was no 1 Pages 257 and 234. 24 370 CASES ON CONSTITUTIONAL LAW. ground on which this court could question its authority; and as Borden acted under military orders of the charter government, which had been recognized by the political power of the coun- try, and was upheld by the state judiciary, he was justified in breaking into and entering Luther's house. This is the extent of the decision. There was no question in issue about the power of declaring martial law under the Federal Constitution, and the court did not consider it necessary even to inquire "to what extent nor under what circumstances that power may be exercised by a state." We do not deem it important to examine further the adjudged cases; and shall, therefore, conclude without any additional refer- ence to authorities. To the third question, then, on which the judges below were opposed in opinion, an answer in the negative must be returned. It is proper to say, although Milligan's trial and conviction by a military commission was illegal, yet, if guilty of the crimes imputed to him, and his guilt had been ascertained by an estab- lished court and impartial jury, he deserved severe punishment. Open resistance to the measures deemed necessary to subdue a great rebellion, by those who enjoy the protection of government, and have not the excuse even of prejudice of section to plead in their favor, is wicked; but that resistance becomes an enormous crime when it assumes tlie form of a secret political organiza- tion, armed to oppose the laws, and seeks by stealthy means to introduce the enemies of the country into peaceful communities, -there to light the torch of civil war, and thus overthrow the power ,of the United States. Conspiracies like these, at such a junc- rture, are extremely perilous; and those concerned in them are .dangerous enemies to their country, and should receive the heav- iest penalties of the law, as an example to deter others from sim- ilar criminal conduct. It is said the severity of the laws caused them; but Congress was obliged to enact severe laws to meet the crisis; and as our highest civil duty is to serve our country when in danger, the late war has proved that rigorous laws, when necessary, will be cheerfully obeyed by a patriotic people, strug- gling to preserve the rich blessings of a free government. The two remaining questions in this case must be answered in the affirmative. The suspension 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 pro- ceeding ;9ny further with it. EX PARTE MILLI5AN. 371 If the militaxy trial of Milligan -was contrary to law, then no was entitled, on the facts stated in his petition, to be discharged from custody by the terms of the act of Congress of March 3, 1863. The provisions of this law having been considered in a previous part of this opinion, we will not restate the views there presented. Milligan avers he was a citizen of Indiana, not in the military or naval service, and was detained in close confinement, by order of the President, from the 5th day of October, 1864, until the 2d day of January, 1865, when the Circuit Court for the District of Indiana, with a grand Jury, convened in session at Indianapolis; and afterwards, on the 37th day of the same month, adjourned without finding an indictment or presentment against him. If these averments were true (and their truth is conceded for the purposes of this case), the court was required to liberate him on taking certain oaths prescribed by the law, and entering into recognizance for his good behavior. But it is insisted that Milligan was a prisoner of war, and, there- fore, excluded from the privileges of the statute. It is not easy to see how he can be treated as a prisoner of war, when he lived in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion. If in Indiana he conspired with bad men to assist the enemy, he is punishable for it in the courts of Indiana; but, when tried for the oilense, he cannot plead the rights of war; for he was not engaged in legal acts of hostility against the gov- ernment, and only such persons, when captured, are prisoners of war. If he cannot enjoy the immunities attaching to the charac- ter of a prisoner of war, how can he be subject to their pains and penalties? This case, as well as the kindred cases of Bowles and Horsey, were disposed of at the last term, and the proper orders were entered of record. There is, therefore, no additional entry re- quired. [The Chief Justice, for himself and Messes. Justices Wayne, Swatne, and Millee, delivered an opinion in which he differed from the court in several important particulars, but con- curred in the order made in the case.] IX. EX POST FACTO LAWS AND BILLS OF ATTAINDER. CALDEE T. BULL. 3 Pallas, 386. Decided 1798. In error from the Sta'te of ConnecticTit. The cause was argued at the last term (in the absence of the chief justice), and now the couit delivered their opinions seriatim. Chase, J. The decision of one question determities, in my opinion, the present dispute. I shall, therefore, state from the record no more of the ease tlian_ I think necessary for the con- sideration of that question only. The legislature of Connecticut, on the second Thursday of May, 1795, passed a resolution or law, which, for the reasons assigned, set aside a. decree of the court of probate for Hartford, on the 21st of March, 1793,_ which decree disapproved of the will of Normand Morrison, the grandson, made the 31st of August, 1779, and re- fused to record the said will; and granted a new hearing by the said court of probate, with liberty of appeal therefrom, in six months. A new hearing was had, in virtue of this resolution, or law, before the said court of probate, who, on the 27th of July, 1795, approved the said will, and ordered it to be recorded. At August, 1795, appeal was then had to the superior court at Hart- ford, who, at February term, 1796, af&rmed the decree of the court of probate. Appeal was had to the supreme court of errors of Connecticut, who, in June, 1796, adjudged that there were no errors. More than eighteen months elapsed from the decree of the court of probate, on t]ie 1st of March, 1793j and, thereby. Caleb Bull and wife were barred, of all right of appeal, by a &ta,tute of Connecticut. There was no law of that State whereby a new hearing, or trial, before the said court of probate might be ob- tained. Calder and wife claim the premises in question, in right of his wife, as heiress of N. Morrison, physician; Bull and wife claim under the will of N. Morrison, the grandson. The counsel for the plaintiffs in error contend that the said 872 €ALt»ER V. BUliL. 373 resolution or law of the legislature of 'Connecticut, granting a new hearing in the above ejase, iis an ex post fa(jto law, prohibitecl by the constitution 'o!E the United Staltes; that any law of the federal government, or 'of any of the state governntiehts, contrary to the eonstittition of the United States, is Void; and that this court possesses the power to declare stich law void. It appeairs to me a self-evident proposition, that the several staite legislatures retain all the powers of legislation delegated to them by the st&,te constitutions, which are not expressly taken away by the consrfatution of the United States. The establish- ing ieourts of justice, the appoiiitment of judges, and the making regulations for the administraftion of justice withiii each State, according to its la;ws, on all subjects iiot intrusted to the federal government, appear to Ine to be the peculiar and excltiBive prov- ince and duty of the state legislatures. AH the poWere delegated by thie people of the United States to the federal government are defined, and no constructive powers can be exercised by it, and all the powers that remain in the stft^te ^goveriiments are indefinite, except only in the constitution oiE Massachusetts. The effect of thfe resolutioii or law of Connecticut above stated, is to revise a decision of one of its inferior courts, cialled the court of probate for Hartford, and to direct a, new hearing of the case by the same court of probate that passed the decree against the will of Normand Morrison. By the existing law of Connecticut, a right to recover certain property had vested in Calder and wife (the appellants) in conse and are applicable to contracts of every description. If contracts made with the State are to be exempted from their opera- tion, 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- 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 instrument, have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which men are ex- posed. 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, oi 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 legislature over the lives and fortunes of individuals is expressly restrained. What motive, then, for implying, in words which import a general prohibition to im- pair the obligation of contracts, an exception in favor of the right to impair the obligation of those contracts into which the State may enter? The State legislatures can pass no ex post facto law. An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when it was committed. Such a law may inflict penalties on the person, or may inflict pecuniary penalties which swell the public treasury. The legislature is then prohibited from passing a law 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 pimishment. Why, then, should violence be done to the natural meaning of words for the purpose of leaving to the legislature the power of seizing, for public use, the estate of an individual in the form of a law annul- ling the title by which he holds that estate? The court can per- ceive no suificient grounds for making that distinction. This re- scinding act would have the effect of an ex post facto law. It forfeits the estate of Fletcher for a crime not committed by him- self, but by those from whom he purchased. This cannot be effected in the form &f an ex post facto law, or bill of attainder; 40^ CASES ON CONSTITUTIONAL LAW, ■why, then, is it allowable in the form of a law annulling the original grant? The argument in favor of presuming an intention to except a case, not excepted by the words of the constitution, is susceptible of some illustration from a principle originally engrafted in that instrument, though no longer a part of it. The constitution, as passed, gave the courts of the United States jurisdiction in suits brought against individual States. A State, then, which violated its own contract, was suable in the courts of the United States for that violation. Would it have been a defense in such a suit to say that the State had passed a law absolving itself from the con- tract? It is scarcely to be conceived that such a defense could be set up. And yet, if a State is neither restrained by the general principles of our political institutions, nor by the words of the constitution, from impairing the obligation of its own contracts, such a defense would be a valid one. This feature is no longer found in the constitution] but it aids in the construction of those clauses with which it was originally associated. It is, then, the unanimous opinion of the court, that, in this case, the estate having passed into the hands of a purchaser for a valuable consideration, without notice, the State of Georgia was restrained, either by general principles which are common to our free institutions, or by the particular provisions of the Constitu- tion of the United States, from passing a'law whereby the estate of the plaintiff in the premises so purchased could be constitu- tionally and .legally imnaired and rendered null and void. In overruling the demurrer to the 3d plea, therefore, there is no error. . . , The question, whether tSie vacant lands within the United States became a joint property, or belonged to the separate States, was a momentous question, which, at one time, threatened to shake the American confederacy to its foundation. This important and dangerous contest has been compromised, and the compromise is not now to be disturbed. It is the opinion of the court, that the particular land stated in the declaration appears, from this special verdict, to lie within the State of Georgia, and that the State of Georgia had power to grant it. Some difficulty was produced by the language of the covenant, and of the pleadings. It was doubted whether a State can be seized in fee of lands subject to the Indian title, and whether a decision that they were seized in fee might not be construed to STURGES v. CROWNINSHIELD. 405 amount to a decision that their grantee might maintain an eject- ment for them, notwithstanding that title. The majority of the court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely re- pugnant to seizin in fee on the part of the State. Judgment affirmed, with costs- [Mb. Justice Johnson delivered a separate opinion.] STTIEGES V. CROWNINSHIELD. 4 Wheaton, 122. Decided 1819. This was an action of assumpsit, brought in the circuit court of Massachusetts, against the defendant, as the maker of two prom- issory nates, both dated at New York, on the 32d of March, 1811, for the sum of $771.86 each, and payable to the plaintiff, one on the 1st of August, and the other on the 15th of August, 1811. The defendant pleaded his discharge under "An act for the benefit of insolvent debtors and their creditors," passed by the legislature of New York, the 3d day of April, 1811. After stating the provisions of the said act, the defendant's plea averred his compliance with them, and that he was discharged, and a cer- tificate given to him the fifteenth day of February, 1812. To this plea there was a general demurrer, and joinder. At the October term of the circuit court, 1817, the cause came on to be argued and heard on the said demurrer, and the following questions arose, to wit: — 1. Whether, since the adoption of the constitution of the United States, any State has authbrity to pass a bankrupt law, or whether the power is exclusively vested in the congress of the United States? 3. Whether the act of New York, passed the third day of April, 1811, and stated in the plea in this case, is a bankrupt act, within the meaning of the constitution of the United States? 3. Whether the act aforesaid is an act or law impairing the obligation of contracts, within the meaning of the Constitution of the United States? 4. Whether the plea is a good and sufficient bar of the plaint- iff's action? 406 CASES ON CONSTITUTIONAL LAW. And after hearing coxmsel upon the questions, the judges of the circuit court were opposed in opinion thereupon; and upon motion of the plaintiff's counsel, the questions were certified to the supreme courtj for their final decision. . . . Maeshall, C. J., delivered the opinion of the court. This case is adjourned from the court of the United States, for the first circuit and the district of Massachusetts, on several points on which the judges of that court were divided, which are stated in the record, for the opinion of this court. The first is: — Whether, since the adoption of the constitution of the United States, any State has authority to pass a bankrupt law, or whether the power is exclusively vested in the congress of the United States? . . . Without entering further into the delicate inquiry respecting the precise limitations which the several grants of power to con- gress, contained in the constitution, may impose on the state legislatures, than is necessary for the decision of the question be- fore the court, it is sufiicient to say, that, until the power to pass uniform laws on the subject of bankruptcies be exercised by con- gress, the States are not forbidden to pass a bankrupt law, pro- vided it contain no principle which violates the 10th section of the first article of the constitution of the United States. This opinion renders it totally unnecessary to consider the ques- tion whether the law of New York is, or is not, a bankrupt law. We proceed to the great question on which the cause must de- pend. Does the law of New York, which is pleaded in this case, impair the obligation of contracts, within the meaning of the constitution of the United States? This act liberates the person of the debtor, and discharges him from all liability for any debt previously contracted, on his surrendering his property in the manner it prescribes. In discussing the question whether a State is prohibited from passing such a law as this, our first inquiry is into the meaning of words in common use. What is the obliga- tion of a contract? and what will impair it? It would seem difficult to substitute words which are more in- telligible, or less liable to misconstruction, than those which are to be explained. A contract is an agreement in which a party undertakes to do, or not to do, a particular thing. The law binds him to perform his undertaking, and this is, of course, the obliga- tion of his contract. In the case at bar, the defendant has given his promissory note to pay the plaintiff a sum of money on or before a certain day. The contract binds him to pay that sum on STURGES V. CROWNINSHIELD. 407 that day; and this is its obligation. Any law which releases a part of this obligation. Tax ' in the literal sense of the word, impair it. Much more must a law impair it which makes it totally in- valid, and entirely discharges it. The words of the constitution, then, are express, and incapable of being misunderstood. They admit of no variety of construc- tion, and are acknowledged to apply to that species of contract, an engagement between man and man, for the payment of money, which has been entered into by these parties. Yet the opinion that this law is not within the prohibition of the constitution, has been entertained by those who are entitled to great respect, and has been supported by arguments which deserve to be seriously considered. It has been contended, that as a contract can only bind a man to pay to the full extent of his property, it is an implied condition that he may be discharged on surrendering the whole of it. But it is not true that the parties have in view only the prop- erty in possession when the contract is formed, or that its obliga- tion does not extend to future acquisitions. Industry, talents, and integrity, constitute a fund which is as confidently trusted as property itself. Future acquisitions are, therefore, liable for con- tracts; and to release them from this liability impairs their obli- gation. It has been argued, that the States are not prohibited from passing bankrupt laws, and that the essential principle of such! laws is to discharge the bankrupt from all past obligations; that the States have been in the constant practice of passing insolvent laws, such as that of New York, and if the framers of the con- stitution had intended to deprive them of this power, insolvent laws would have been mentioned in the prohibition; that the pre- vailing evil of the times, which produced this clause in the consti- tution, was the practice of emitting paper money, of making prop- erty which was useless to the creditor a discharge of his debt, and of changing the time of payment by authorizing distant install- ments. Laws of this description, not insolvent laws, constituted, it is said, the mischief to be remedied; and laws of this descrip- tion, not insolvent laws, are within the true spirit of the pro- hibition. The constitution does not grant to the States the power of pass- ing bankrupt laws, or any other power; but finds them in posses- sion of it, and may either prohibit its future exercise entirely, or restrain it so far as national policy may require. It has so far restrained it as to prohibit the passage of any law impairing the 408 CASES ON CONSTITUTIONAL LAW. obligation of contracts. Although, then, the States may, until that power shall be exercised by congress, pass laws concerning bankrupts, yet they cannot constitutionally introduce into such laws a clause which discharges the obligations the bankrupt has entered into. It is not admitted that without this principle, an act cannot be a bankrupt law; and if it were, that admission would not change the constitution, nor exempt such acts from its pro- hibitions. The argument drawn from the omission in the constitution to prohibit the States from passing insolvent laws, admits of several satisfactory answers. It was not necessary, nor would it have been safe, had it even been the intention of the framers of the consti- tution to prohibit the passage of all insolvent laws, to enumerate particular subjects to which the principle they intended to estab- lish should apply. The principle was the inviolability of con- tracts. This principle was to be protected in whatsoever form it might be assailed. To what purpose enumerate the particular modes of violation which should be forbidden, when it was in- tended to forbid all? Had an enumeration of all the laws which might violate contracts been attempted, the provision must have been less complete, and involved in more perplexity than it now is. The plain and simple declaration, that no State shall pass any law impairing the obligation of contracts, includes insolvent laws and all other laws, so far as they infringe the principle the con- vention intended to hold sacred, and no further. But a still more satisfactory answer to this argument is, that the convention did not intend to prohibit the passage of all in- solvent laws. To punish honest insolvency by imprisonment for life, and to make this a constitutional principle, would be an excess of inhumanity which will not readily be imputed to the illustrious patriots who framed our constitution, nor to the people who adopted it. The distinction between the obligation of a contract, and the remedy given by the legislature to enforce that obligation, has been taken at the bar, and exists in the nature of things. Without impairing the obligation of the contract, the rem- edy may certainly be modified as the wisdom of the naiion shall direct; Confinement of the debtor may be a punishment for not performing his contract, or may be allowed as a means of inducing him to perform it. But the State may refuse to inflict this punish- ment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to re- lease the prisoner does not impair its obligation. The argument which has been pressed most earnestly at the bar. STURGES V. CROWNINSHIELD. ^09 is, that, althougli all legislative acts whicli discharge the obliga- tion of a contract without performance, are within the very words of the constitution, yet an insolvent act, containing this principle, is not within its spirit, because such acts have been passed by colonial and state legislatures from the first settlement of the coun- try, and because we know from the history of the times, that the mind of the convention was directed to other laws, which were fraudulent in their character, which enabled the debtor to escape from his obligation, and yet hold his property; not to this, which is beneficial in its operation. Before discussing this argument, it may not be improper to premise that, although the spirit of an instrument, especially of a constitution, is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words. It would be dan- gerous in the extreme to infer from extrinsic circumstances, that a case for which the words of an instrument expressly provide, shall be exempted from its operation. Where words conflict with each other, where the different clauses of an instrument bear upon each other, and would be inconsistent unless the natural and common import of words be varied, construction becomes neces- sary, and a departure from the obvious meaning of words is justi- fiable. But if, in any case, the plain meaning of a provision, not contradicted by any other provision in the same instrument, is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the ab- surdity and injustice of applying the provision to the case, would be so monstrous that all mankind would, without hesitation, unite in rejecting the application. This is certainly not such a case. It is said the colonial and state legislatures have been in the habit of passing laws of this description for more than a century; that they have never been the subject of complaint, and, consequently, could not be within the view of the general convention. The fact is too broadly stated. The insolvent laws of many, indeed, of by far the greater number of the States, do not contain this principle. They discharge the person of the debtor, but leave his obligation to pay in full force. To this the constitution is not opposed. But, were it even true that this principle had been introduced generally into those laws, it would not justify our varying the con- struction of the section. Every State in the Union, both while a colony and after becoming independent, had been in the prac- tice of issuing paper money; yet this practice is, in terms, prohib- 410 CASES ON CONSTITUTIONAL LAW. ited. If the long exercise of the power to emit bills of credit did not restrain the convention from prohibiting its future exercise, neither can it be said that the long exercise of the power to impair the obligation of contracts, should prevent a similar prohibition. It is not admitted that the prohibition is more express in the one ease than in the other. It does not, indeed, extend to insolvent laws by name, because it is not a law by naane, but a principle which is to be forbidden; and this principle is described in as ap- propriate terms as our language affords. Neither, as we conceive, will any admissible rule of construe- j tion justify us in limiting the prohibition under consideration,! to the particular laws which have been described at the bar, and which furnished such cause for general alarm. What were those laws? We are told they were such as grew out of the general distress following the war in which our independence was established. To relieve this distress paper money was issued; worthless lands, and other property of no use to the creditor, were made a tender in payment of debts; and the time of payment,, stipulated in the contract, was extended by law. These were the peculiar evila of the day. So much mischief was done, and so much more was apprehended, that general distrust prevailed, and all confidence between man and man was destroyed. To laws of this description therefore, it is said, the prohibition to pass laws impairing the obligation of contracts ought to be confined. Let this argument be tried by the words of the section under consideration. Was this general prohibition intended to prevent paper money? We are not allowed to say so, because it is expressly provided, that no State shall "emit bills of credit;" neither could these words be intended to restrain the States from enabling debtors to discharge their debts by the tender of property of no real value to the creditor, because for that subject also particular provision is made. Nothing but gold and silver coin can be made a tender in payment of debts. It remains to inquire, whether the prohibition under considera/- tion could be intended for the single case of a law directing that judgments should be carried into execution by instalments?, This question will scarcely admit of discussion. If this was the only remaining mischief against which the constitution in- tended to provide, it would undoubtedly have been, like paper money and tender laws, expressly forbidden. At any rate, terms more directly applicable to the subject, more appropriately ex- pressing the intention of the convention, would have been used. STURGBS V. CROWNINSHIELD. 411 It seems scarcely possible to suppose that the framers of the con- stitution, if intending to prohibit only laws authorizing the pay- ment of debts by instalments, would have expressed that inten- tion by saying, "no State shall pass any law impairing the obliga- tion «f contracts." No men would so express such an intention. No men would use terms embracing a whole class of laws, for the purpose of designating a single individual of that class. No court can be justified in restricting such comprehensive words to a par- ticular mischief to which no allusion is made. The fair, and we think, the necessary construction of the sen- tence, requires, that we should give these words their full and obvious meaning. A general dissatisfaction with that lax system of legislation which followed the war of our Eevolution, undoubt- edly directed the mind of the convention to this subject. It is probable that laws such as those which have been stated in argu- ment, produced the loudest complaints, were most immediately felt. The attention of the convention, therefore, was particularly directed to paper money, and to acts which enabled the debtor to discharge his debt otherwise than was stipulated in the contract. Had nothing more been intended, nothing more would have been expressed. But, in the opinion of the convention, much more re- mained to be done. The same mischief might be effected by other means. To restore public confidence completely, it was neces- sary not only to prohibit the use of particular means by which it might be effected, but to prohibit the use of any means by which the same mischief might be produced. The convention appears to have intended to establish a great principle, that contracts should be inviolable. The constitution, therefore, declares, that no State shall pass "any law impairing the obligation of contracts." If, as we think, it must be admitted that this intention might actuate the convention; that it is not only consistent with, but is apparently manifested by, all that part of the section which respects this subject; that the words used are well adapted to the expression of it; that violence would be done to their plain mean- ing by understanding them in a more limited sense; those rules of construction, which have been consecrated by the wisdom of ages, compel us to say, that these words prohibit the passage of any law discharging a contract without performance. By way of analogy, the statutes of limitations, and against usury, have been referred to in argument; and it has been sup- posed that the construction of the constitution, which this opin- ion maintains, would apply to them also, and must therefore be too extensive to be correct. 4:12 CASES ON CONSTITUTIONAL LAW. We do not think so. Statutes of limitations relate to the reme- dies which are furnished in the courts. They rather establish, that certain circumstances shall amount to evidence that a con- tract has been performed, than dispense with its performance. If, in a State where six years may be pleaded in bar to an action of assumpsit, a law should pass declaring that contracts abeady in existence, not barred by the statute, should be construed to be within it, there could be little doubt of its unconstitutionality. So with respect to the laws against usury. If the law be, that no person shall take more than six per centum per annum for •the use of money, and that, if more be reserved, the contract shall be void, a contract made thereafter reserving seven per cent., would have no obligation in its commencement; but if a law should declare that contracts already entered into, and reserving the legal interest, should be usurious and void, either ia the whole or in part, it would impair the obligation of the contract, and would be clearly imconstitutional. This opinion is confined to the case actually under considera- tion. It is confined to a case in which a creditor sues in a court, the proceedings of which the legislature, whose act is pleaded, had not a right to control, and to a case where the creditor had not proceeded to execution against the body of his debtor, within the State whose law attempts to absolve a confined insolvent debtor from his obligation. When such a case arises it will be consid- ered. It is the opinion of the court, that the act of the State of New York, which is pleaded by the defendant in this cause, so far as it attempts to discharge this defendant from the debt in the declaration mentioned, is contrary to the constitution of the United States, and that the plea is no bar to the action THE TEUSTEES OF DAETMOUTH COLLEGE t. WOOD- WAED. 4 Wheaton, 518. Decided 1819. [The facts are sufficiently stated in the opinion of the court.] Maeshall, C. J., delivered the opinion of the court, as fol- lows: This is an action of trover, brought by the Trustees of Dart- mouth College, against William H. Woodward, in the state court DARTMOUTH COLLEGE v. WOODWARD. 113 of New Hampshire, for the book of records, corporate seal, and other corporate property, to which the plaintifEs allege themselves to he entitled. A special verdict, after setting out the rights of the parties, finds for the defendant, if certain acts of the legislature of New Hampshire, passed on the 27th of June, and on the 18th of De- cember, 1816, be valid, and binding on the trustees without their assent, and not repugnant to the constitution of the United States; otherwise it finds for the plaintiffs.. The superior court of judicature of New Hampshire rendered a judgment upon this verdict for the defendant, which judgment has been brought before this court by writ of error. The single question now to be considered is, do the acts to which the verdict refers violate the constitution of the United States? This CQurt can be insensible neither to the magnitude nor to the delicacy of this question. The validity of a legislative act is to be examined; and the opinion of the highest law tribunal of a State is to be revised; an opinion which carries with it intrinsic evidence of the diligence, of the ability, and the integrity with which it was formed. On more than one occasion this court has expressed the cautious circumspection with which it approaches the consideration of such questions; and has declared that, in no doubtful case, would it pronounce a legislative act to be contrary to the constitution. But the American people have said, in the constitution of the United States, that "no State shall pass any bill of attainder, ex post facto law, or law impairing the obliga- tion of contracts." In the same instrument they have also said, "that the judicial power shall also extend to all cases in law and equity arising under the constitution." On the judges of this court, then, is imposed the high and solemn duty of protect- ing, from even legislative violation, those contracts which the constitution of our country has placed beyond legislative control; and, however irksome the task may be, this is a duty from which we dare not shrink. The title of the plaintiffs originates in a charter dated the 13th day of December, in the year 1769, incorporating twelve persons therein mentioned, by the name of "The Trustees of Dartmouth College," granting to them and their successors the usual cor- porate privileges and powers, and authorizing the trustees, who are to govern the college, to fill up all vacancies which may be created in their own body. The defendant claims under three acts of the legislature of New Hampshire, the most material of which was passed on the 37th of 414 CASES ON CONSTITUTIONAL LAW. June, 1816, and is entitled "An act to amend the charter and enlarge and improve the corporation of Dartmouth College." Among other alterations in the charter, this act increases the number of trustees to twenty-one, gives the appointment of the additional members to the executive of the State, and creates a board of overseers, with power to inspect and control the most important acts of the trustees. This board consists of twenty- five persons. The president of the senate, the speaker of the house of representatives of ISew Hampshire, and the governor and lieutenant-governor of Vermont, for the time being, are to be members ex ofBcio. The board is to be completed by the gov- ernor and council of New Hampshire, who are also empowered to fill all vacancies which may occur. The acts of the 18th and 26th of December are supplemental to that of the 37th of June, and are principally intended to carry that act into effect. The majority of the trustees of the college have refused to accept this amended charter, and have brought this suit for the corporate property, which is in possession of a person holding by virtue of the acts which have been stated. It can require no argument to prove that the circumstances of this case constitute a contract. An application is made to the crown for a charter to incorporate a religious and literary institu- tion. In the application it is stated that large contributions have been made for the object, which will be conferred on the cor- poration as soon as it shall be created. The charter is granted, and on its faith the property is conveyed. Surely in this transac- tion every ingredient of a complete and legitimate contract is to be found. The points for consideration are, 1. Is this contract protected by the constitution of the United States? 2. Is it impaired by the acts under which the defendant holds? 1. On the first point it has been argued that the word "con- tract," in its broadest sense, would comprehend the political rela- tions between the government and its citizens, would extend to offices held within a State for state purposes, ^nd to many of those laws concerning civil institutions, which must change with circumstances, and be modified by ordinary legislaition; which deeply concern the public, and which, to preserve good govern- ment, the public judgment must control. That even marriage is a contract, and its obligations are affected by the laws respect- ing divorces. That the clause in the constitution, if construed in its greatest latitude, would prohibit these laws. Taken in its DARTMOUTH COLLEGE V. WOODWARD. 415 broad, unlimited sense, the clause would be an unprofitable and vexatious interference with the internal concerns of a State, would unnecessarily and unwisely embarrass its legislation, and render immutable those civil institutions which are established for pxir- poses of internal government, and which, to subserve those pur- poses, ought to vary with Varying circumstances. That as the framers of the constitution could never have intended to insert in that instrument a provision so unnecessary, so mischievous, and so repugnant to its gefieral spirit, the term "contract" must be understood in a more limited sense. That it must be under- stood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively felt, and to re- strain the legislature in future from violating the right to prop- erty. That anterior to the formation of the constitution, a course of legislation had prevailed in many, if not in all, of the States, which weakened the confidence of man in man, and embarrassed all transactions between individuals, by dispensing with a faith- ful performance of engagements. To correct this mischief, by restraining the power which produced it, the State legislatures were forbidden "to pass any law impairing the obligation of con- tracts," that is, of contracts respecting property, under which some individual could claim a right to something beneficial to himself; and that since the clause in the constitution must in construction receive some limitation, it may be confined, and ought to be confined, to cases of this description; to cases within the mischief it was intended to remedy. The general correctness of these observations cannot be con- troverted. That the framers of the constitution did not intend to restrain the States in the regulation of their civil institutions, adopted for internal government, and that the instrument they have given us is not to be so construed, may be admitted. The provision of the constitution never has been understood to em- brace other contracts than those which respect property or some object of value, and confer rights which may be asserted in a court of justice. It has never been understood to restrict the gen- eral right of the legislature to legislate on the subject of divorces. Those acts enable some tribunal, not to impair a marriage con- tract, but to liberate one of the parties because it has been broken by the other. When any State legislature shall pass an act an- nulling all marriage contracts, or allowing either party to annul it without the consent of the other, it will be time enough io inquire whether such an act be constitutional. The parties in this case differ less on general principles, less '4:16 CASES ON CONSTITUTIONAL LAW. on the true constniction of the constitution in the abstract, than on the application of those principles to this case, and on the true construction of the charter of 1769. This is the point on which the cause essentially depends. If the act of incorporation be a grant of political power, if it creates a civil institution to be em- ployed in the admitiistration of the government, or if the funds of the college be public property, or if the State of New Hamp- shire, as a government, be alone interested in its transactions, the subject is one in which the legislature of the State may act according to its own judgment, unrestrained by any limitation of its power imposed by the constitution of the United States. But if this be a private eleemosynary institution, endowed with a capacity to take property for objects unconnected with govern- ment, whose funds are bestowed by individuals on the faith of the charter; if the donors have stipulated for the future disposi- tion and management of those funds in the manner prescribed by themselves; there may be more difficulty in the case, although neither the persons who have made these stipulations, nor those for whose benefit they were made, should be parties to the cause. Those who are no longer interested in the property may yet retain such an interest in the preservation of their own arrangements as to have a right to insist that those arrangements shall be held sacred. Or, if they have themselves disappeared, it becomes a subject of serious and anxious inquiry whether those whom they have legally empowered to represent them forever may not assert all the rights which they possessed while in being; whether, if they be without personal representatives who may feel injured by a violation of the compact, the trustees be not so completely their representatives in the eye of the law as to stand in their place, not only as respects the government of the college, but also as respects the maintenance of the college charter. It becomes then the duty of the court most seriously to ex- amine this charter, and to ascertain its true character. From the instrument itself it appears that about the year 1754 the Eev. Eleazer Wheelock established at his own expense, and on his own estate, a charity school for the instruction of In- dians in the Christian religion. The success of this institution inspired him with the design of soliciting contributions in Eng- land for carryng on and extending his undertaking. In this pious work he employed the Eev. Nathaniel Whitaker, who, by virtue of a power of attorney from Dr. Wheelock, appointed the Earl of Dartmouth and others trustees of the money which had been and should be contributed; which appointment Dr. Wheelock DARTMOUTH COLLEGE v. WOODWARD. 417 confirmed by a deed of trust authorizing the trustees to fix on a site for the college. They determined to establish the school on Connecticut Kiver, in the western part of New Hampshire; that situation being supposed favorable for carrying on the original design among the Indians, and also for promoting learning among the English, and the proprietors in the neighborhood having made large offers of land on condition that the college should there be placed. Dr. Wheeloek then applied to the crown for an act of incorporation, and represented the expediency of appointing those whom he had, by his last will, named as trustees in Amer- ica, to be members of the proposed corporation. "In considera- tion of the premises," "for the education and instruction of the youth of the Indian tribes," &c., "and also of English youth and any others," the charter was granted, and the Trustees of Dart- mouth College were by that name created a body corporate, with power, for the use of the said college, to acquire real and personal property, and to pay the president, tutors, and other officers of the college such salaries as they shall allow. The charter proceeds to appoint Eleazer Wheeloek, "the founder of. said college," president thereof, with power by his last will to appoint a successor, who is to continue in office until disapproved by the trustees. In eases of vacancy, the trustees may appoint a president, and in case of the ceasing of a president, the senior professor or tutor, being one of the trustees, shall exercise the office until an appointment shall be . made. The trustees have power to appoint and displace professors, tutors, and other offi- cers, and to supply any vacancies which may be created in their own body by death, resignation, removal, or disability; and also to make orders, ordinances, and laws for the government of the college, the same not being repugnant to the laws of Great Brit- ain or of New Hampshire, and not excluding any person on ac- count of his speculative sentiments in religion, or his being of a religious profession different from that of the trustees. This charter was accepted, and the property, both real and personal, which had been contributed for the benefit of the col- lege, was conveyed to and vested in the corporate body. From this brief review of the most essential parts of the char- ter, it is apparent that the funds of the college consisted entirely of private donations. It is, perhaps, not very important who were the donors. The probability is that the Earl of Dartmouth and the other trustees in England were, in fact, the largest contrib- utors. Yet the legal conclusion from the facts recited in the 27 418 CASES ON CONSTITUTIONAL. LAW. charter would probably be, that Dr. "WTieelock was the founder of the college. The origin of the institution was, undoubtedly, the Indian charity school established by Dr. Wheelock at his own expense. It was at his instance, and to enlarge this school, that contri- butions were solicited in England. The person soliciting these contributions was his agent; and the trustees, who received the money, were appointed by and acted under his authority. It is not too much to say that the funds were obtained by him in trust, to be applied by him to the purposes of his enlarged school. The charter of incorporation was granted at his instance. The persons named by him' in his last will as the trustees of his charity school compose a part of the corporation, and he is de- clared to be the founder of the college and its president for life. Were the inquiry material, we should feel some hesitation in saying that Dr. Wheelock was not, in law, to be considered as the founder (1 Bl. Com., 481) of this institution, and as pos- sessing all the rights appertaining to that character. But be this as it may, Dartmouth College is really endowed by private individuals, who have bestowed their funds for the propagation of the Christian religion among the Indians, and for the promo- tion of piety and learning generally. From these funds the salaries of the tutors are drawn, and these salaries lessen the expense of education to the students. It is then an eleemosy- nary (1 Bl. Com., 471) and, as far as respects its funds, a private corporation. Do its objects stamp on it a difEerent character? Are the trus- tees and professors public ofBcers, invested with any portion of political power, partaking in any degree in the administration of civil government, and performing duties which flow from the sovereign authority? That education is an object of national concern and a proper subject of legislation, all admit. That there may be an institu- tion founded by government and placed entirely under its imme- diate control, the officers of which would be public officers, amen- able exclusively to government, none will deny. But is Dart- mouth CoUege such an institution? Is education altogether in the hands of government? Does every teacher of youth become a public officer, and do donations for the purpose of education necessarily become public property, so far that the will of the legislature, not the will of the donor, becomes the law of the donation? These questions are of serious moment to society, and deserve to be well considered. DARTMOUTH COLLEGE V. WOODWARD. 419 Dr. Wheelock, as the keeper of his charity school, instructing the Indians in the art of reading and in our holy religion, sus- taining them at his own expense and on the voluntary contribu- tions of the charitable, could scarcely he considered as a public officer, exercising any portion of those duties which belong to government; nor could the legislature have supposed that his private funds, or those given by others, were subject to legisla- tive management because they were applied to the purposes of education. When, afterwards, his school was enlarged, and the liberal contributions made in England and in America enabled him to extend his cares to the education of the youth of his own country, no change was wrought in his own character or in the nature of his duties. Had he employed assistant tutors with the funds contributed by others, or had the trustees in England established a school with Dr. Wheelock at its head, and paid salaries to him and his assistants, they would still have been pri- vate tutors; and the fact that they were employed in the educa- tion of youth could not have converted them into public officers concerned in the administration of public duties, or have given the legislature a right to interfere in the management of the fund. The trustees, in whose care that fund was placed by the contributors, would have been permitted to execute their trust ■uncontrolled by legislative authority. Whence, then, can be derived the idea that Dartmouth College has become a public institution, and its trustees public officers^ exercising powers conferred by the public for public objects? Not from the source whence its funds were drawn, for its foundation is purely private and eleemosynary, — ^not from the application of those funds; for money may be given for education, and the persons receiving it do not, by being employed in the education of youth, become members of the civil government. Is it from the act of incorporation? Let this subject be considered. A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as axe supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality; properties, by which a perpetual succession of many persons are considered as the same, and may act as a single in- dividual. They enable a corporation to manage its own affairs, .and to hold property without the perplexing intricacies, the haz- 420 CASES ON CONSTITUTIONAL LAW. ardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand to hand. It is chieily for the purpose of clothing bodies of men in succession with these qualities and capacities that corporations were invented and are in use. By these means, a perpetual succession of individuals are capable of acting for the promotion of the particular object, like one immortal being. But this being does not share in the civil government of the country, unless that be the purpose for which it was created. Its immortality no more confers on it po- litical power or a political character than immortality would con- fer such power or character on a natural person. It is no more a State instrument than a natural person exercising the same powers would be. If, then, a natural person, employed by indi- viduals in the education of youth, or for the government of a seminary in which youth is educated, would not become a public officer, or be considered as a member of the civil government, how is it that this artificial being, created by law for the purpose of being employed by the same individuals for the same purposes, should become a part of the civil gavernment of the country? Is it because its existence, its capacities, its powers, are given by law? Because the government has given it the power to take and to hold property in a particular form and for particular purposes, has the government a consequent right substantially to change that form, or to vary the purposes to which the property is to be applied? This principle has never been asserted or recognized, and is supported by no authority. Can it derive aid from reason? The objects for which a corporation is created are universally such as the government wishes to promote. They are deemed beneficial to the Qountry; and this benefit constitutes the con- sideration, and, in most cases, the sole consideration of the grant. In most eleemosynary institutions, the object would be difficult, perhaps unattainable, without the aid of a charter of incorpora- tion. Charitable or public-spirited individuals, desirous of mak- ing permanent appropriations for charitable or other useful pur- poses, find it impossible to effect their design securely and cer- tainly without an incorporating act. They apply to the govern- ment, state their beneficent object, and offer to advance the money necessary for its accomplishment, provided the govern- ment will confer on the instrument which is to execute their de- signs the capacity to execute them. The proposition is considered and approved. The benefit to the public is considered as an ample compensation for the faculty it confers, and the corporation is created. If the advantages to the public constitute a full com- DARTMOUTH COLLEGE v. WOODWARD. 431 pensation for the faculty it give% there can be no reason for exact- ing a further compensation, by claiming a right to exercise over this artificial being a power which changes its nature, and touches the fund for the security and application of which it was created. There can be no reason for implying in a charter, given for a val- uable consideration, a power which is not only not expressed, but is in direct contradiction to its express stipulations. From the fact, then, that a charter of incorporation has been granted, nothing can be inferred which changes the character of the institution, or transfers to the government any new power over it. The character of civil institutions does not grow out of their incorporation, but out of the manner in which they are formed, and the objects for which they are created. The right to change them is not founded on their being incorporated, but on their being the instruments of government, created for its pur- pose. The same institutions, created for the same objects, though not incorporated, woidd be public institutions, and, of course, be controllable by the legislature. The incorporating act neither gives nor prevents this control. Neither, in reason,' can the in- corporating act change the character of a private eleemosynary institution. We are next led to the inquiry, for whose benefit the property given to Dartmouth College was secured? The counsel for the defendant have insisted that the beneficial interest is in the people of New Hampshire. The charter, after reciting the preliminary measures which had been taken, and the application for an act. of incorporation, proceeds thus: "Know ye, therefore, that we, considering the premises, and being willing to encourage the laudable and charitable design of spreading Christian knowledge among the savages of our American wilderness, and also that the best means of education be established, in our province of New Hampshire, for the benefit of said province, do, of our special grace," etc. Do these expressions bestow on New Hampshire any exclusive right to the property of the college, any exclusive interest in the labors of the professors? Or do they merely indi- cate a willingness that New Hampshire should enjoy those ad- vantages which result to all from the establishment of a seminary of learning in the neighborhood? On this point we think it impossible to entertain a serious doubt. The words themselves, unexplained by the context, indicate that the "benefit intended for the province" is that which is derived from "establishing the best means of education therein;" that is, from establishing in the province Dartmouth College as constituted by the charter. 422 CASES ON CONSTITUTIONAL LAW. But if these words, considered alone, could admit of doubt, that doubt is completely removed by an inspection of the entire in- strument. The particular interests of New Hampshire never entered into the mind of the donors, never constituted a motive for their dona- tion. The propagation of the Christian religion among the sav- ages, and the dissemination of useful knowledge among the youth of the country, were the avowed and the sole objects of their contributions. In these New Hampshire would participate j but nothing particular or exclusive was intended for her. Even the site of the college was selected, not for the sake of New Hamp- shire, but because it was "most subservient to the great ends in view," and because liberal donations of land were offered by the proprietors on condition that 1;he institution should be there estab- lished. The real advantages from the location of the college are, perhaps, not less considerable to those on the west than to those on the east side of Connecticut Eiver. The clause which con- stitutes the incorporation, and expresses the objects for which it was made, declares those objects to be the instruction of the Indians, "and also of English youth and any others." So that the objects of the contributors and the incorporating act were the same, — ^the promotion of Christianity and of education gener- ally, not the interests of New Hampshire particularly. From this review of the charter, it appears that Dartmouth College is an eleemosynary institution, incorporated for the pur- pose of perpetuating the application of the bounty of the donors to the specified objects of that bounty; that its trustees or gov- ernors were originally named by the founder, and invested with the power of perpetuating themselves; that they are not public officers, nor is it a civil institution, participating in the admin- istration of government; but a charity school, or a seminary of education, incorporated for the preservation of its property, and the perpetual application of that property to the objects of its creation. Yet a question remains to be considered of more real difficulty, on which more doubt has been entertained than on all that have been discussed. The founders of the college, at least those whose contributions were in money, have parted with the property be- stowed upon it, and their representatives have no interest in that property. The donors of land are equally without interest so long as the corporation shall exist. Cotild they be found, they are unaffected by any alteration in its constitution, and probably regardless of its form or even of its existence. The students are DARTMOUTH COLLEGE v, WOODWARD. 423 fluctuating, and no individual among our youth has a vested in- terest in the institution which can be asserted in a court of jus- tice. Neither the founders of the college, nor the youth for whose benefit it was founded, complain of the alteration made in its charter, or think themselves injured by it. The trustees alone complain, and the trustees have no beneficial interest to be pro- tected. Can this be such a contract as the constitution intended to withdraw from the power of State legislation? Contracts, the parties to which have a vested beneficial interest, and those only, it has been said, are the objects about which the constitution is solicitous, and to which its protection is extended. The court has bestowed on this argument the most deliberate consideration, and the residt will be stated. Dr. Wheelock, act- ing for himself and for those who, at his solicitation, had made contributions to his school, applied for this charter, as the instru- ment which should enable him and them to perpetuate their beneficent intention. It was granted. An artificial, immortal being was created by the crown, capable of receiving and distrib- uting forever, according to the will of the donors, the donations which should be made to it. On this being, the contributions which had been collected were immediately bestowed. These gifts were made, not indeed to make a profit for the donors or their posterity, but for something, in their opinion, of inestimable value; for something which they deemed a full equivalent for the money with which it was purchased. The consideration for which they stipulated, is the perpetual application of the fund to its object, in the mode prescribed by themselves. Their descendants may take no interest in the preservation of this consideration. But in this respect their descendants are not their representa- tives. They are represented by the corporation. The corpora- tion is the assignee of their rights, stands in their place, and dis- tributes their bounty, as they would themselves have distributed it had they been immortal. So with respect to the students who are to derive learning from this source. The corporation is a trustee for them also. Their potential rights, which, taken dis- tributively, are imperceptible, amount collectively to a most im- portant interest. These are, in the aggregate, to be exercised, as- serted, and protected by the corporation. They were as completely out of the donors, at the instant of their being vested in the corporation, and as incapable of being asserted by the students, as at present. According to the theory of the British constitution, their par- liament is omnipotent. To annul corporate rights might give a 424 CASES ON CONSTITUTIONAL LAW. shock to public opinion, which that government has chosen to avoid; but its power is not questioned. Had parliament, imme- diately after the emanation of this charter and the execution of those conveyances which followed it, annulled the instrument, so that the living donors would have witnessed the disappoint- ment of their hopes, the perfidy of the transaction would have been universally acknowleged. Yet then, as now, the donors would have had no interest in the property; then, as now, those who might be students would have had no rights to be violated; then, as now, it might be said that the trustees, in whom the rights of all were combined, possessed no private, individual, beneficial interest in the property confided to their protection. Yet the contract would at that time have been deemed sacred by all. What has since occurred to strip it of its inviolability? Circumstances have not changed it. In reason, in justice, and in law, it is now what it was in 1769. This is plainly a contract to which the donors, the trustees, and the crown (to whose rights and obligations New Hampshire suc- ceeds) were the original parties. It is a contract made on a val- uable consideration. It is a contract for the security and disposi- tion of property. It is a contract on the faith of which real and personal estate has been conveyed to the corporation. It is then a contract within the letter of the constitution, and within its spirit also, unless the fact that the property is invested by the donors in trustees for the promotion of religion and education, for the benefit of persons who are perpetually changing, though the objects remain the same, shall create a particular exception, taking this case out of the prohibition contained in the consti- tution. It is more than possible that the preservation of rights of this description was not particularly in the view of the framers of the constitution when the clause under consideration was intro- duced into that instrument. It is probable that interferences of more frequent recurrence, to which the temptation was stronger and of which the mischief was more extensive, constituted the great motive for imposing this restriction on the State legisla- tures. But although a particular and a rare case may not in itself be of sufiicient magnitude to induce a rule, yet it must be governed by the rule, when established, unless some plain and strong reason for excluding it can be given. It is not enough to say that this particular case was not in the mind of the convention when the article was framed, nor of the American people when it was adopted. It is necessary to go farther, and to say that, had this DARTMOUTH COLLEGE v. WOODWARD. 435 particular case been suggested, the language would have heen so varied as to exclude it, or it would have been made a special exception. The ease, being within the words of the rule, must be within its operation likewise, unless there be something in the literal construction so obviously absurd, or mischievous, or repug- nant to the general spirit of the instrument as to justify those who expound the constitution' in making it an exception. On what safe and intelligible ground can this exception stand? There is no expression in the constitution^ no sentiment delivered by its contemporaneous expounders, which would justify us in making it. In the absence of all authority of this kind, is there^ in the nature and reason of the case itself, that which would sus- tain a construction of the constitution not warranted by its words? Are contracts of this description of a character to excite so little interest that we must exclude them from the provisions of the constitution, as being imworthy of the attention of those who framed the instrument? Or does, public policy so imperiously de- mand their remaining exposed to legislative alteration as to com- pel us, or rather permit us to say, that these words, which were introduced to give stability to contracts, and which in their plain import comprehend this contract,, must yet be so construed as to exclude it? Almost all eleemosynary corporations^ those which are created for the promotion of religion, of charity, or of education, are of the same character. The law of this case is the law of all. In every lit- erary or charitable institution, ualess the objects of the bounty be themselves incorporated, the. whole legal interest is in trustees, and can be asserted only by them. The donors, or claimants of the bounty, if they can appear in court at all, can appear only to complain of the trustees. In all other situations, they are identi- fied with, and personated by, the trustees, and their rights are to be defended and maintained by them. Eeligion, charity, and edu-. cation are, in the law of England, legatees or donees, capable of receiving bequests or donations in this form. They appear in court, and claim or defend by the corporation. Are they of so little estimation in the United States that contracts for their bene^. fit must be excluded from the protection of words which in their natural import include them? Or do such contracts so necessarily require new modeUing by the authority of the legislature that the ordinary rules of construction must be disregarded in order to leave them exposed to legislative alteration? All feel that these objects are not deemed unimportant in the United States. The interest which this case has excited proves 436 CASES ON CONSTITUTIONAL LAW. that they are not. The framers of the constitution did not deem them unworthy of its care and protection. They have, though in a different mode, manifested their respect for science by re- serving to the government of the Union the power "to promote the progress of science and useful arts, by securing for limited times, to authors and inventors, the exclusive right to their respect- ive writings and discoveries." They have so far withdrawn science and the useful arts from the action of the State governments. Why, then, should they be supposed so regardless of contracts made for the advancement of literature as to intend to exclude them from provisions made for the security of ordinary contracts between man and man? No reason for making this supposition is perceived. If the insignificance of the object does iiot require that we should exclude contracts respecting it from the protection of the constitution; neither, as we conceive, is the policy of leaving them subject to legislative alteration so apparent as to require a forced construction of that instrument in order to effect it. These eleemosynary institutions do not fill the place which would other- wise be occupied by government, but that which would otherwise remain vacant. They are complete acquisitions to literature. They are donations to education; donations which any government must be disposed rather to encourage than to discountenance. It re- quires no very critical examination of the human mind to enable us to determine that one great inducement to these gifts is the conviction felt by the giver that the disposition he makes of them is immutable. It is probable that no man ever was, and that no man ever will be, the founder of a college, believing at the time that an act of incorporation constitutes no security for the insti- tution; believing that it is immediately to be deemed a public institution, whose funds are to be governed and applied, not by the will of the donor, but by the will of the legislature. AH such gifts are made in the pleasing, perhaps delusive, hope that the charity will flow forever in the channel which the givers have marked out for it. If every man finds in his own bosom strong evidence of the universality of this sentiment, there can be but little reason to imagine that the framers of our constitution were strangers to it; and that, feeling the necessity and policy of giving permanence and security to contracts, of withdrawing them from the influence of legislative bodies, whose fluctuating policy and repeated interferences produced the most perplexing and inju- rious embarrassments, they still deemed it necessary to leave these contracts subject td those interferences. The motives for such DARTMOUTH COLLEGE v. WOODWARD. 427 an exception must be very powerful to justify the construction which makes it. The motives suggested at the bar grow out of the original ap- pointment of the trustees, which is supposed to have been in a spirit hostile to the genius of our government, and the presump- tion that, if allowed to continue themselves, they now are, and must remain forever, what they originally were. Hence is inferred the necessity of applying to this corporation, and to other similar corporations, the correcting and improving hand of the legisla- ture. It has been urged repeatedly, and certainly with a degree of earnestness which attracted attention, that the trustees, deriving their power from a regal source, must necessarily partake of the spirit of their ©rigin; and that their first principles, unimproved by that resplendent light which has been shed around them, must continue to govern the college, and to guide the students. Before we inquire into the influence which this argument ought to have on the constitutional question, it may not be amiss to examine the fact on which it rests. The first trustees were undoubtedly named in the charter by the crown, but at whose suggestion were they named? By whom were they selected? The charter informs us. Dr. Wheelock had represented, "that, for many weighty rea- sons, it would be expedient that the gentlemen whom he had al- ready nominated in his last will to be trustees in America, should be of the corporation now proposed." When, afterwards, the trustees are named in the charter, can it be doubted that the per- sons mentioned by Dr. Wheelock in his will were appointed? Some were probably added by the crown, with the approbation of Dr. Wheelock. Among these is the doctor himself. If any others were appointed at the instance of the crown, they are the governor, three members of the council, and the speaker of the house of representatives of the colony of New Hampshire. The stations filled by these persons ought to rescue them from any other im- putation than too great a dependence on the crown. If in the Eevolution that followed, they acted under the influence of this sentiment, they must have ceased to be trustees; if they took part with their countrymen, the imputation which suspicion might excite would no longer attach to them. The original trustees, then, or most of them, were named by Dr. Wheelock, and those who were added to his nomination, most probably with his appro- bation, were among the most eminent and respectable individuals in New Hampshire. The only evidence which we possess of the character of Dr. 428 CASES ON GONSTITUTIONAL LAW. Wheelock is furnished by this chaxter. The judicious means em- ployed for the accomplishment of his object, and the success which attended his endeavops, would lead to the opinion thai he imited a sound understanding to that humanity and benevolence which suggested his undertaking. It surely cannot be assumed that his trustees were selected without judgment. With as little probabil- ity can it be assumed that, while the light of science and of lib- eral principles pervades the whole community, these originally benighted trustees remain in utter darkness, incapable of partici- pating in the general improvement; that, while the human race is rapidly advancing, they are stationary. Eeasoning a priori, we should believe that learned and intelligent men, selected by its patrons for the government of a literary institution, would select learned and intelligent men for their successors, men as well fitted for the government of a college as those who might be chosen by other means. Should this reasoning ever prove erroneous in a particular case, public opinion, as has been stated at the bar, would correct the institution. The mere possibility of the contrary would not justify a construction of the constitution which should exclude these contracts from the protection of a provision whose terms comprehend them. The opinion of the court, after mature deliberation is, that this is a contract, the obligation of which cannot be impaired without violating the constitution of the United States. This opinion ap- pears to us to be equally supported by reason and by the former decisions of this court. 2. We next proceed to the inquiry whether its obligation has been impaired by those acts of the legislature of New Hampshire to which the special verdict refers. From the review of this charter which has been taken it appears that the whole power of governing the college, of appointing and re- moving tutors, of iixing their salaries, of directing the course of study to be pursued by the students, and of filling up vacancies cre- ated in their own body, was vested in the trustees. On the part of the crown it was expressly stipulated that this corporation, thus constituted, should continue forever; and that the number of trustees should forever consist of twelve, and no more. By this contract the crown was bound, and could have made no vio- lent alteration in its essential terms without impairing its obliga- tion. By the Eevolution the duties as well as the powers of govern- ment devolved on the people of New Hampshire. It is admitted that among the latter was comprehended the transcendent power DAKTMOUTH COLLBXJB v. WOODWARD. 429 of parliament, as well as that of the exectitive department. It is too clear to require the support of argument that all contracts and rights respecting propeirty remained unchanged by the Revo- lution. The ohligations, then, which were created by the char- ter to Dartmouth College were the same in the new that they had been in the old government. The power of the government was also the same. A repeal of this charter at any time prior to the adoption of the present constitution of the United States would have been an extraordinary and unprecedented act of power, but one which could have been contested only by the restrictions upon the legislature to be found in the constitution of the State. But the constitution of the United States has imposed this addi- tional limitation, that the legislature of a State shall pass no act "impairing the obligation of contracts." It has been already stated that the act "to amend the charter and enlarge and improve the corporation of Dartmouth College" increases the number of trustees to twenty-one, gives the appoint- ment of the additional members to the executive of the State, and creates a board of overseers, to consist of twenty-five persons, of whom twenty-one are also appointed by the executive of New Hampshire, who have power to inspect and control the most im- portant acts of the trustees. On the effect of this law two opinions cannot be entertained. Between acting directly and acting through the agency of trus- tees and overseers no essential difference is perceived. The whole power of governing the college is transformed from trustees ap- pointed according to the will of the founder, expressed in the charter, to the executive of New Hampshire. The management and application of the funds of this eleemosynary institution, which are placed by the donors in the hands of trustees named in the charter, and empowered to perpetuate themselves, are placed by this act under the control of the government of the State. The will of the State is substituted for the will of the donors in every essential operation of the college. This is not an immaterial change. The founders of the college contracted, not merely for the perpetual application of the funds which they gave to the objects for which those funds were given; they contracted also to secure that application by the constitution of the corporation. They contracted for a system which should, as far as human fore- sight can provide, retain forever the governmeiit of the literary institution they had formed, in the haiids HJf persons approved by themselves. This system is totally changed. The charter of 1769 exists no longer. It is reorganized; and reorganized in such 430 CASES ON CONSTITUTIONAL LAW. a manner as to convert a literary institution, molded according to the will of its founders and placed under the control of private literary men, into a machine entirely subservient to the will of government. This may be for the advantage of this college in particular, and may be for the advantage of literature in general; but it is not according to the will of the donors, and is subver- sive of that contract on the faith of which their property was given. In the view which has been taken of this interesting case, the court has confined itself to the rights possessed by the trustees, as the assignees and representatives of the donors and founders, for the benefit of religion and literature. Yet it is not clear that the trustees ought to be considered as destitute of such beneficial in- tfirest in themselves as the law may respect. In addition to their being the legal owners of the property, and to their having a free- hold right in the powers confided to them, the charter itself countenances the idea that trustees may also be tutors with sala- ries. The first president was one of the original trustees; and the charter provides, that in case of vacancy in that office, "the senior professor or tutor, being one of the trustees, shall exercise the office of president, until the trustees shall make choice of, and appoint a president." According to the tenor of the charter, then, the trustees might, without impropriety, appoint a president and other professors from their own body. This is a power not entirely unconnected with an interest. Even if the proposition of the counsel for the defendant were sustained; if it were admitted, that those contracts only are protected by the constitution, a beneficial interest in which is vested in the party who appears in court to assert that interest; yet it is by no means clear that the Trustees of Dartmouth College have no beneficial interest in themselves. But the court has deemed it unnecessary to investigate this particular point, being of opinion, on general principles, that in these private eleemosynary institutions, the body corporate, as pos- sessing the whole legal and equitable interest, and completely rep- resenting the donors, for the purpose of executing the trust, has rights which are protected by the constitution. It results from this opinion, that the acts of the legislature of New Hampshire, which are stated in the special verdict found in this cause, are repugnant to the constitution of the United States; and that the judgment on this special verdict ought to have been for the plaintiffs. The judgment of the state court must, there- fore, be reversed. OGDEN T. SAUNDERS. 431 [Justices Washington and Stoey delivered concurring opin- ions. Justice Johnson concurred for the reasons stated by the Chief Justice; Justice Livingston concurred for the reasons stated by the Chief Justice and by Justices Washington and Stoet. Justice Duvall dissented.] Note.— "It may well be doubted whether any decision ever de- livered by any court has had such a pervading operation and in- fluence in controlling legislation as this. The legislation, however, so controlled, has been that of the States of the Union." MiUer, Lectures on the Constitution of the United States, 391. OGDEN V. SAUNDERS. 12 Wheaton, 213. Decided 1827. Eeeob to the district court of the United States for Louisiana. This was an action of assumpsit, brought in the court below, by the defendant in error, Saunders, a citizen of Kentucky, against the plaintiff in error, Ogden, a citizen of Louisiana. The plaintiff below declared upon certain bills of exchange, drawn on the 30th of September, 1806, by one Jordan, at Lexington, in the State of Kentucky, upon the defendant below, Ogden, in the city of New York (the defendant then being a citizen and resident of the State of New York), accepted by him at the city of New York, and pro- tested for non-payment. The defendant below pleaded several pleas, among which was a certificate of discharge under the act of the legislature of the State of New York, of April 3, 1801, for the relief of insolvent debtors, commonly called the three-fourths act. The jury found the facts in the form of a special verdict, on which the court rendered a judgment for the plaintiff below, and the cause was brought by writ of error before this court. The question which arose under this plea as to the validity of the law of New York as being repugnant to the constitution of the United States, was argued at February term, 1824, . . . and the cause was continued for advisement until the present term. It was again argued at the present term (in connection with several other causes standing on the calendar, and involving the general 432 CASES ON CONSTITUTIONAL LAW. question of the validity of the state bankrupt, or insolvent laws). The learned judges delivered their opinions as follows: — "Washington, J. The first and most important point to be de- cided in this cause turns essentially upon the question, whether the obligation of a contract is impaired by a State bankrupt or in- solvent law, which discharges the person and the future acquisitions of the debtor from his liability under a contract entered into in that State after the passage of the act. This question has never before been distinctly presented to the consideration of this court, and decided, although it has been sup- posed by the judges of a highly respectable state court that it was decided in the ease of M'Millan v. M'JSTeal, 4 W., 209. That was the case of a debt contracted by two citizens of South Carolina, in that State, the discharge of which had a view to no other State. The debtor afterwards removed to the territory of Louisiana, where he was regularly discharged, as an insolvent, from all his debts, under an act of the legislature of that State passed prior to the time when the debt in question was contracted. To an action brought by the creditor in the district court of Louisiana, the de- fendant plead in bar his discharge, under the law of that territoi7, and it was contended by the counsel for the debtor in this court, that the law under which the debtor was discharged, hating passed before the contract was made, it could not be said to impair its obligation. The cause was argued on one side only, and it would seem from the report of the ease, that no written opinion was pre- pared by the court. The chief justice stated that the circumstance of the state law under which the debt was attempted to be dis- charged having been passed before the debt was contracted, made no difference in the application of the principle which had been asesrted by the court in the case of Sturges v. Crownindiield, 4 W., 123. The correctness of this position is believed to be incontro- vertible. The principle alluded to was, that a state bankrupt law which impairs the obligation of a contract, is unconstitutional in its application to such contract. In that case, it is true, the con- tract preceded in order of time the act of assembly, under which the debtor was discharged, although it was not thought necessary to notice that circumstance in the opinion which was pronounced. The principle, however, remained, in the opinion of the court de- livered in M'Millan v. M'Neal, unaifected by the circumstance that the law of Louisiana preceded a contract made in another State; since that law, having no extra-territorial force, never did OGDEN V. SAUNDERS. 433 at any time govern or affect the obligation of such contract. It could not, therefore, be correctly said to be prior to the contract, in reference to its obligation; since if, upon legal principles, it could affect the contract, that could not happen until the debtor became a citizen of Louisiana, and that was subsequent to the contract. But I hold the principle to be well es.tablished, that a discharge under the bankrupt laws of one government does not- affect contracts made or to be executed under another, whether the law be prior or subsequent in the date to that of the contract;- and this I take to be the only point really decided in the case alluded to. Whether the chief justice was correctly understood by the reporter, when he is supposed to have said, "that this case was not distinguishable in principle from the preceding case of StuTges V. Crowninshield," it is not material at this time to in- quire, because I understand the meaning of these expressions to go no further than to intimate that there was no distinction be- tween the cases as to the constitutional objection, since it professed to discharge a debt contracted in another State, which, at the time it was contracted, was not within its operation, nor subject to be discharged by it. The case now to be decided, is that of a debt contracted in the State of New York, by a citizen of that State, from which he was discharged, so far as he constitutionally could be, under a bankrupt law of that State, in force at the time when the debt was contracted. It is a ease, therefore, that bears no re- semblance to the one just noticed. I come now to the consideration of the question, which, for the first time, has been directly brought before this court for judg- ment. ... It has constantly appeared to me, throughout the different in- vestigations of this question to which it has been my duty to attend, that the error of those who controvert the constitutionality of the bankrupt law under consideration, in its application to this case, if they be in error at all, has arisen from not distinguishing accurately between a law which impairs a contract, and one which impairs its obligation. A contract is defined by all to be an agree- ment to do or not to do some particular act; and in the construc- tion of this agreement, depending essentially upon the will of the parties between whom it is formed, we seek for their intention with a view to fulfill it. Any law, then, which enlarges, abridges or in any manner changes this intention, when it is discovered, neces- sarily impairs the contract itself, which is but the evidence of that intention. . . . What is it, then, which constitutes the obligation of a con- 28 434 CASES ON CONSTITUTIONAL LAW. tract? The answer is given by the chief justice, in the case of Sturges V. Crowninshield, to which I readily assent now, as I did then; it is the law which binds the parties to perform their agree- ment. The law, then, which has this binding obligation, must govern and control the contract in every shape in which it is in- tended to bear upon it, whether it affect its validity, construction, or discharge. But the question, which law is referred to in the above definition, still remains to be solved. It cannot, for a moment, be conceded that the mere moral law is intended, since the obligation which that imposes is altogether of the imperfect kind which the parties to it are free to obey or not, as they please. It cannot be supposed that it was with this law the grave authors of this instrument were dealing. The universal law of all civilized nations, which declares that men shall perform that to which they have agreed, has been sup- posed by the counsel who have argued this cause for the defendant in error, to be the law which is alluded to; and I have no objection to acknowledging its obligation, whilst I must deny that it is that which exclusively governs the contract. It is upon this law that the obligation which nations acknowledge to perform their com- pacts with each other is founded, and I, therefore, feel no objection to answer the question asked by the same counsel — ^what law it is which constitutes the obligation of the compact between Vir- ginia and Kentucky — ^by admitting, that it is this common law of nations which requires them to perform it. I admit further that it is this law -which creates the obligation of a contract made upon a desert spot, where no municipal law exists, and (which was another case put by the same counsel) which contract, by the tacit assent of all nations, their tribunals are authorized to enforce. But can it be seriously insisted that this, any more than the moral law upon which it is founded, was exclusively in the con- templation of those who framed this constitution? What is the language of this universal law? It is simply that all men are bound to perform their contracts. The injunction is as absolute as the contracts to which it applies. It admits of no qualification and no restraint, either as to its validity, construction, or discharge, further than may be necessary to develop the intention of the parties to the contract. And if it be true that this is exclusively the law, to which the constitution refers us, it is very apparent that the sphere of state legislation upon subjects connected with the contracts of individuals, would be abridged beyond what it can for a moment be believed the sovereign States of this Union would OGDEN T. SAUNDERS. 435 have consented to; for it will be found, upon examination, that there are few laws which concern the general police of a State, or the government of its citizens, in their intercourse with each other or with strangers, which may not in some way or other afEeet the contracts which they have entered into, or may thereafter form. For what are laws of evidence, or which concern remedies — frauds and perjuries — laws of registration, and those which affect land- lord and tenant, sales at auction, acts of limitation, and those which limit the fees of professional men, and the charges of tavern- keepers, and a multitude of others which crowd the codes of every State, but laws which may affect the validity, construction, or dura- tion, or discharge of contracts? Whilst I admit, then, that this common law of nations, which has been mentioned, may form in part the obligation of a contract, I must unhesitatingly insist that this law is to be taken in strict subordination to the municipal laws of the land where the contract is made, or is to be executed. The former can be satisfied by nothing short of performance; the latter may affect and control the validity, construction, evi- dence, remedy, performance, and discharge of the contract. The former is the common law of all civilized nations, and of each of them; the latter is the peculiar law of each, and is paramount to the former whenever they come in collision with each other. It is, then, the municipal law of the State, whether that be written or unwritten, which is emphatically the law of the con- tract made within the State, and must govern it throughout, wher- ever its performance is sought to be enforced. It forms, in my humble opinion, a port of the contract, and travels with it wherever the parties to it may be found. It is so regarded by all the civilized nations of the world, and is enforced by the tribunals of those nations according to its own forms, unless the parties to it have otherwise agreed, as where the contract is to be executed in, or refers to the laws of, some other country than that in which it is formed, or where it is of an immoral character, or contravenes the policy of the nation to whose tribunals the ap- peal is made; in which latter cases the remedy which the comity of nations affords for enforcing the obligation of contracts wher- ever formed, is denied. Free from these objections, this law, which accompanies the contract as forming a part of it, is regarded and enforced everywhere, whether it affect the validity, construction, or discharge of the contract. It is upon this principle of universal law, that the discharge of the contract, or of one of the parties to it, by the bankrupt laws of the country where it was made, operates as a discharge everywhere. 436 CASES ON CONSTITUTIONAIi LAW. If, then, it be true that the law of the country where the contract is made or to be executed, forms a part of that contract and of its obhgation, it would seem to be somewhat of a solecism to say that it does, at the same time, impair that obligation. But it is contended that if the municipal law of the State where the contract is so made form a part of it, so does that clause of the constitution which prohibits the States from passing laws to impair the obligation of contracts; and, consequently, that the law is rendered inoperative by force of its controlling associate. All this I admit, provided it be first proved that the law so incor- porated with and forming a part of the contract does, in effect, impair its obligation; and before this can be proved, it must be affirmed and satisfactorily made out, that if, by the terms of the contract, it is agreed that, on the happening of a certain event, as, upon the future insolvency of one of the parties, and his surrender of all his property for the benefit of his creditorSj the contract shall be considered as performed and at an end, this stipulation would impair the obligation of the contract. If this proposition can be successfully affirmed, I can only say, that the soundness of it is beyond the reach of my mind to understand. Again, it is insisted that if the law of the contract forms a part of it, the law itself cannot be repealed without impairing the obli- gation of the contract. This proposition I must be permitted to deny. It may be repealed at any time, at the will of the legis- lature, and then it ceases to form any part of those contracts which may afterwards be entered into. The repeal is no more void than a new law would be which operates upon contracts to affect their validity, construotion, or duration. Both are valid (if the view which I take of this ease be correct), as they may affect contracts afterwards formed; but neither are so, if they bear upon existing contracts; and, in the former case, in which the repeal contains no enactment, the constitution would forbid the application of the repealing law to past contracts, and to those only. To illustrate this argument, let us take four laws, which, either by new enactments, or by the repeal of former laws, may affect contracts as to their validity, construction, evidence, or remedy. Laws againM usury are of the first description. A law which converts a penalty, stipulated for by the parties, as the only atonement for a breach of the contract, into a mere agree- ment for a just compensation, to be measured by the legal rate of interest, is of the second. The statute of frauds, and the statute of limitations, may be cited as examples of the last two. OGDEN V. SAUNDERS. 43T The validity of these laws can never be questioned by those who accompany me in the view which I take of the question under consideration, unless they operate, by their express provisions, upon contracts previously entered into; and even then they are void only so far as they do so onerate; because, in that case, and in that case only, do they impair the obligation of those contracts. But if they equally impair the obligation of contracts subsequently made, which they must do, if this be the operation of a bankrupt law upon such contracts, it would seem to follow that all such laws, whether in the form of new enactments, or of repealing laws, producing the same legal consequences, are made void by the con- stitution; and yet the counsel for the defendants in error have not ventured to maintain so alarming a proposition. If it be conceded that those laws are not repugnant to the con- stitution, so far as they apply to subsequent contracts, I am yet to be instructed how to distinguish between -those laws, and the one now under consideration. How has this been attempted by the learned counsel who have argued this cause upon the ground of such a distinction? They have insisted that the effect of the law first supposed, is to annihilate the contract in its birth, or rather to prevent it from having a legal existence, and consequently, that there is no obliga- tion to be unpaired. But this is clearly not so, since it may legiti- mately avoid all contracts afterwards entered into, which reserve to the lender a higher rate of interest than this law permits. The validity of the second law is admitted, and yet this can only be in its application to subsequent contracts; for it has not, and I think it cannot, for a moment, be maintained, that a law which, in express terms, varies the construction of an existing contract, or which, repealing a former law, is made to produce the same effect, does not impair thie obligation of 'that contract. The statute of frauds, and the statute of limitations, which have been put as examples of the third and fourth classes of laws, are also admitted to be valid, because they merely concern the modes of proceeding in the trial of causes. The former, supplying a rule of evidence, and the, latter, forming a part of the remedy j given by the legislature to enforce the obligation, and likewise pro-;' viding a rule of evidence. All this I admit. But how does it happen that these laws, like those which affect the validity and construction of contracts, are valid as to subsequent, and yet void as to prior and subsisting con- tracts? For we are informed by the learned Judge who delivered the opinion of this court, in the case of Sturges v. Crowninshield, 438 CASES ON CONSTITUTIONAL LAW. 4 W., 123, that, "if, in a State where six years may be pleaded in bax to an action of assumpsit, a law should pass declaring that con- tracts already in existence, not barred by the statute, should be construed within it, there could be little doubt of its unconstitu- tionality." It is thus most apparent that, whichever way we turn, whether to laws affecting the validity, construction, or discharges of con- traots, or the evidence or remedy to be employed in enforcing them, we are met by this overruling and admitted distinction, between those which operate retrospectively, and those which operate pros- pectively. In all of them the law is pronounced to be void in the first class of cases, and not so in the second. Let us stop, then, to make a more critical examination of the act of limitations, which, although it concerns the remedy, or, if it must be conceded, the evidence, is yet void or otherwise, as it is made to apply retroactively, or prospectively, and see if it can, upon any intelligible principle, be distinguished from a bankrupt law, when applied in the same manner. What is the effect of the former? The answer is, to discharge the debtor and all his future acquisitions from this contract; because he is permitted to plead it in bar of any remedy which can be instituted against him, and consequently in bar or destruction of the obligation which his con- tract imposed upon him. What is the effect of a discharge under a bankrupt law? I can answer this question in no other terms than those which are given to the former question. If there be a difference, it is one which, in the eye of justice, at least, is more favorable to the validity of the latter than of the former; for in the one, the debtor surrenders everjrthing which he possesses towards the discharge of his obligation, and in the other, he sur- renders nothing, and sullenly shelters himself behind a legal objec- tion with which the law has provided him, for the purpose of pro- tecting his person, and his present as well as his future acquisitions, against the performance of his contract. It is said that the former does not discharge him absolutely from his contract, because it leaves a shadow sufficiently substan- tial to raise a consideration for a new promise to pay. And is not this equally the ease with a certificated bankrupt, who afterwards promises to pay a debt from which his certificate had discharged him? In the former case, it is said the defendant must plead the statute in order to bar the remedy and to exempt him from his obligation. And so, I answer, he must plead his discharge under the bankrupt law, and his conformity to it, in order to bar the remedy of his creditor, and to secure to himself a like exemption. OGDEN T. SAUNDERS. 439 I have, in short, sought in vain for some other grounds on which to distinguish the two laws from each other than those which were suggested at the bar. I can imagine no other, and I confidently believe that none exist which will bear the test of a critical ex- amination. To the decision of this court, made in the case of Sturges v. Crowninshield, and to the reasoning of the learned judge who delivered thait opinion, I entirely submit; although I did not then, nor can I now bring my mind to concur in that part of it which admits the constitutional power of the state legislatures to pass bankrupt laws, by which I understand those laws which discharge the person and the future acquisitions of the bankrupt from his debts. I have always thought that the power to pass such a law was exclusively vested by the constitution in the legislature of the United States. But it becomes me to believe that this opinion was and is incorrect, since it stands condemned by the decision of a majority of this court, solemnly pronounced. After making this acknowledgment, I refer again to the above decision with some degree of confidence in support of the opinion, to which I am now inclined to come, that a bankrupt law which operates prospectively, or in so far as it does so operate, does not violate the constitution of the 'United States. It is there stated "that, until the power to pass uniform laws on the subject of bank- ruptcies be exercised by congress, the States aire not forbidden to pass a bankrupt law, provided it contain no principle which vio- lates the 10th section of the 1st article of the constitution of the United States." The question in that case was, whether the law of New York, passed on the 3d of April, 1811, which liberaites not only the person of the debtor, but discharges him from all liability for any debt contracted previous as well as subsequent to his discharge, on his surrendering his property for the use of his creditors, was a valid law under the constitution, in its application to a debt contracted prior to its passage. The court decided that it was not, upon the single ground that it impaired the obligation of that contract. And if it be true that the States cannot pass a similar law to operate upon contracts subsequently entered into, it follows inevitably, either that they cannot pass such laws at all, contrary to the express declaration of the court, as before quoted, or that such laws do nort impair the obligation of contracts subse- quently entered into; in fine, it is a self-evident proposition that every contract that can be formed, must either precede or follow any law by which it may be affected. I have, throughout the preceding part of this opinion, considered 440 CASES ON CONSTITUTIONAL LAW. the municipal law of the country where the contract is made a* incorporated with the contract, whether it affects its validity, con- struction, or discharge. But I think it quite immaterial to stickle for this position, if it be conceded to me, what can scarcely be denied, that this municipal law constitutes the law of the contract so formed, and must govern it throughout. I hold the legal con- sequences to be the same in whichever view the law, as it affects the contract, is considered. I come now to a more particular examination and construction of the section under which this question arises; and I am free to acknowledge that the collocation of the subjects for which it pro- vides, has made an irresistible impression upon my mind, much stronger, I am persuaded, than I can find language to communicate to the minds of others. It declares that "no State shall coin money, emit bills of credit, make anything but gold and silver coin a tender in payment of debts." These prohibitions, associated with the powers granted to congress "to coin money, and to regulate the value thereof, and of foreign coins," most obviously constitute members of the same family, being upon the same subject and governed by the same policy. This policy was to provide a fixed and uniform standard of value throughout the United States, by which the commercial and other dealings between the citizens thereof, or between them and for- eigners, as well as the moneyed transactions of the government, should be regulated. For it might well be asked, why vest in con- gress the power to establish a uniform standard of value by the means pointed out, if the States might use the same means, and thus defeat the uniformity of the standard, and, consequently, the standard itself? And why establish a standard at all, for the gov- ernment of the various contracts which might be entered into, if those contracts might afterwards be discharged by a different standard, or by that which is not money, under the authority of State tender laws? It is obvious, therefore, that these prohibitions, in the 10th section, are entirely homogeneous, and are essential to the establishment of a uniform standard of value, in the formation and discharge of contracts. It is for this reason, independent of the general phraseology which is employed, that the prohibition in regard to State tender laws will admit of no construction which would confine it to State laws which have a retrospective operation. The next class of prohibitions contained in this section consists of bills of attainder, ex post faeto laws, and laws impairing the obligation of contraete. OGDEN V. SAUNDERS. 441 Here, too, we observe, as I think, members of the same family brought together in the most intimate connection with each other. The States are forbidden to pass any bill of attainder or ex post facto law, by which a man shall be punished criminally or penally, by loss of life, of his liberty, property, or reputation, for an act which, at the time of its commission, violated no existing law of the land. Why did the authors of the constitution turn their attention to this subject, which, at the first blush, would appear to be pe- culiarly fit to be left to the discretion of those who have the police and good government of the State under their management and control? The only answer to be given is, because laws of this character are oppressive, unjust, and tyrannical; and, as such, are condemned by the universal sentence of civilized man. The injus- tice and tyranny which characterizes ex post facto laws, consists altogether in their retrospective operation, which applies with equal force, although not exclusively, to bills of attainder. But if it was deemed wise and proper to prohibit State legislation as to retrospective' laws, which concern, almost exclusively, the citizens and inhabitants of the particular State in which this legis- lation takes place, how much more did it concern the private and political interests of the citizens of all the States, in their com- mercial and ordinary intercourse with each other, that the same prohibition should be extended civilly to the contracts which ihey might enter into? If it were proper to prohibit a state legislature to pass a retro- spective law, which should take from the pocket of one of its own citizens a single dollar as a punishment for an act which was inno- cent at the time it was committed; how much more proper was it to prohibit laws of the same character precisely, which might de- prive the citizens of other States, and foreigners as well as citizens of the same State, of thousands, to which, by their contracts, they were justly entitled, and which they might possibly have realized but for such State interference? How natural, then, was it, under the influence of these considerations, to interdict similar legislation in regard to contracts, by providing that no State should pass laws impairing the obligation of past contracts? It is true that the first two of these prohibitions apply to laws of a criminal, and the last to laws of a civil character; but if I am correct in my view of the spirit and motives of these prohibitions, they agree in the principle, which suggested them. They are founded upon the same reason, and the application of it is at least as strong to the last as it is to the first two prohibitions. But these reasons are altogether inapplicable to laws of a pros- 443 CASES ON CONSTITUTIONAL LAW. pective character. There is nothing unjust or tyrannical in pun- ishing offenses prohibited by law, and committed in violation of that law. N"or can it be unjust or oppressive, to declare by law that contracts subsequently entered into, may be discharged in a way different from that which the parties have provided, but which they know, or may know, are liable, under certain circumstances, to be discharged in a manner contrary to the provisions of their contract. Thinking, as I have always done, that the power to pass bank- rupt laws was intended by the authors of the constitution to be exclusive in congress, or, at least, that they expected the power vested in that body would be exercised, so as effectually to prevent its exercise by the States, it is the more probable that, in refer- ence to all other interferences of the state legislatures upon the subject of contracts, retrospective laws were alone in the contem- plation of the convention. . . . But why, it has been asked, forbid the States to pass laws mak- ing anything but gold and silver coin a tender in payment of debts contracted subsequent as well as prior to the law which author- izes it; and yet confine the prohibition to pass laws impairing the obligation of contracts to past contracts, or, in other words, to future bankrupt laws, when the consequence resulting from each is the same, the latter being considered by the counsel as being, in truth, nothing less than tender laws in disguise. An answer 'to this question has, in part, been anticipated bj' some of the preceding observations. The power to pass bankrupt laws having been vested in congress, either as an exclusive power, or under the belief that it would certainly be exercised; it is highly probable that state legislation upon that subject was not within the contemplation of the convention; or, if it was, it is quite unlikely that the exercise of the power, by the state legislatures, would have been prohibited by the use of terms which, I have endeavored to show, are inapplicable to laws intended to operate prospectively. For had the prohibition been to pass laws impairing contracts, in- stead of the obligation of contracts, I admit that it would have borne the construction which is contended for, since it is clear that the agreement of the parties in the first case would be im- paired as much by a prior as it would be by a subsequent bankrupt law. It has, besides, been attempted to be shown that the limited restriction upon state legislation, imposed by the former prohi- bition, might be submitted to by the States, whilst the extensive operation of the latter would have hazarded, to say the least of it, the adoption of the constitution by the state conventions. OGDBN V. SAUNDERS. 443 But an answer, still more satisfactory to my mind, is this: tender laws, of the description stated in this section, are always unjust; and, where there is an existing bankrupt law at the time the con- tract is made, they can seldom be useful to the honest debtor. They violate the agreement of the parties to it, without the semblance of an apology for the measure, since they operate to discharge the debtor from his undertaking, upon terms variant from those by which he bound himself, to the injury of the creditor, and unsup- ported, in many cases, by the plea of necessity. They extend relief to the opulent debtor, who does not stand in need of it; as well as to the one who is, by misfortunes, often xmavoidable, reduced to poverty, and disabled from complying with his engagements. In. relation to subsequent contracts, they are unjust when extended to the former class of debtors, and useless to the second, since they may be relieved by conforming to the requisitions of the state bankrupt law, where there is one. Being discharged by this law from all his antecedent debts, and having his future acquisitions secured to him, an opportunity is afforded him to become once more a useful member of society. If this view of the subject be correct, it will be difficult to prove that a prospective bankrupt law resembles, in any of its features, a law which should make anything but gold and silver coin a tender in payment of debts. I shall now conclude this opinion by repeating the acknowledg- ment which candor compelled me to make in its commencement, that the question which I have been examining is involved in dif- ficulty and doubt. But if I could rest my opinion in favor of the constitutionality of the law on which the question arises, on no other ground than this doubt so felt and acknowledged, that alone would, in my estimation, be a satisfactory vindication of it. It is but a decent respect due to the wisdom, the integrity, and the patriotism of the legislative body by which any law is passed^ to presume in favor of its validity, until its violation of the constitu- tion is proved beyond all reasonable doubt. This has always been the language of this court, when that subject has called for its decision; and I know that it expresses the honest sentiments of each and every member of this bench. I am perfectly satisfied that it is entertained by those of them from whom it is the mis- fortune of the majority of the court to difEer on the present occa- sion, and that they feel no reasonable doubt of the correctness of the conclusion to which their best judgment has conducted them. 44:4 CASES ON CONSTITUTIONAL LAW. My opinion is, that the judgment of the court below ought to be reversed, and judgment given for the plaintiff in error. . . . [Justices Johnson, Thompson, and Trimble delivered con- curring opinions. Chief Justice Marshall delivered a dissent- ing opinion, in which Justices Duvall and Story concurred.] Judgment having been entered in favor of the validity of a cer- tificate of discharge under the state laws in those cases, argued in connection with Ogden v. Saunders, where the contract was made between citizens of the State under whose law the discharge was obtained, and in whose courts the certificate was pleaded, the cause was further argued by the same counsel, upon the points reserved, as to the effect of such a discharge in respect to a contract made with a citizen of another State, and where the certificate was pleaded in the courts of another State, or of the United States. Johnson, J. I am instructed by the majority of the court finally to dispose of this cause. The present majority is not the same which determined the general question on the constitutionality of state insolvent laws. With reference to the violation of the obli- gation of contracts. I now stand united with the minority on the former question, and, therefore, feel it due to myself and the com- munity to maintain my consistency. The question now to be considered is, whether a discharge of a debtor under a state insolvent law, would be valid against a cred- itor or citizen of another State, who has never voluntarily subjected himself to the state laws, otherwise than by the origin of his con- tract. As between its own citizens, whatever be the origin of the con- tract, there is now no question to be made on the effect of such a discharge; nor is it to be questioned, that a discharge not valid under the constitution in the courts of the United States, is equally invalid in the state courts. The question to be considered goes to the invalidity of the discharge altogether, and, therefore, steers clear of that provision in the constitution which purports to give validity in every State to the records, judicial proceedings, and so forth, of each State. The question now to be considered, was anticipated in the case of Sturgee v. Crowninshield, 4 W., 123, when the court, in the close of the opinion delivered, declared that it means to confine OGDEN v. SAUNDERS. 445 ilB views to the case then under consideration, and not to commit itself as to those in which the interests and rights of a citizen of another State are implicated. The question is one partly international, partly constitutional My opinion on the subject is briefly this: that the provision in the constitution which gives the power to the general government to establish tribunals of its own in every State, in order that the citi- zens of other States or sovereignties might therein prosecute their rights under the jurisdiction of the United States, had for its object an harmonious distribution of justice throughout the Union; to confine the States, in the exercise of their judicial sovereignty, to cases between their own citizens; to prevent, in fact, the exercise of that very power over the rights of citizens of other States, which the origin of the contract might be supposed to give to each State; and thus, to obviate that confiictus legum, which has employed the pens of Huberus and various others, and which any one who studies the subject will plainly perceive it is infinitely more easy to prevent than to adjust. These conflicts of power and right necessarily arise only after contracts are entered into. Contracts, then, become the appropri- a;te subjects of judicial cognizance; and if the just claims which they give rise to, are violated by arbitrary laws, or if the course of distributive justice be turned aside, or obstructed by legislative interference, it becomes a subject of jealousy, irritation, and na- tional complaint or retaliation. It is not unimportant to observe, that the constitution was adopted at the very period when the courts of Great Britain were engaged in adjusting the conflicts of right which arose upon their own bankrupt law, among the subjects of that crown in the several dominions of Scotland, Ireland, and the West Indies. The first case we have on the eifect of foreign discharges, that of Ballantine v. Golding, 1 Cooke's Bank. Law, 487, occurred in 1783, and the law could hardly be held settled before the case of Hunter v. Potts, 4 Term Eep., 182, which was decided in 1791. Any one who will take the trouble to investigate the subject, will, I think, be satisfied, that although the British courts profess to decide upon a principle of universal law, when adjudicating upon the effect of a foreign discharge, neither the passage in Vattel, to which they constantly refer, nor the practice and doctrines of other nations, will sustain them in the principle to the extent in which they assert it. It was all-important to a great commercial nation, the creditors of all the rest of the world, to maintain the doctrine as one of universal obligation, that the assignment of the 446 CASES ON CONSTITUTIONAL LAW. bankrupt's effects, under a law of the country of the contract, should carry the interest in his debts, wherever his debtor may reside; and that no foreign discharge of his debtor should operate against debts contracted with the bankrupt in his own country. But I think it is perfectly clear that in the United States, a different doctrine has been established; and, since the power to discharge the bankrupt is asserted on the same principle with the power to assign his debts, that the departure from it in the one instance carries with it a negation of the principle altogether. It is vain to deny that it is now the established doctrine in England, that the discharge of a bankrupt shall be effectual against contracts of the State that give the discharge, whatsoever be the allegiance or country of the creditor. But I think it equally clear, that this is a rule peculiar to her jurisprudence, and that reciprocity is the general rule of other countries; that the effect given to such discharge is so much a matter of comity, that the States of the European continent, in all cases, reserve the right of deciding whether reciprocity will not operate injuriously upon their own citizens. Huberus, in his third axiom on this subject, puts the effect of such laws upon the ground of courtesy, and recognizes the reserva- tion that I have mentioned; other writers do the same. I will now examine the American decision on this subject; and, first, in direct hostility with the received doctrines of the British courts, it has been solemnly adjudged in this court, and, I believe, in every state court of the Union, that, notwithstanding the laws of bankruptcy in England, a creditor of the bankrupt may levy an attachment on a debt due the bankrupt in this country, and appropriate the proceeds to his own debt. . . . [Here follows a consideration of the cases of Harrison v. Sterry, 5 Cranch, 389; Baker v. Wheaton, 5 Mass., 509; Watson v. Bourne, 10 Mass., 337; Assignees of Topham v. Chapman, 1 Const. Eep. (S. C), 283, and Phillips v. Hunter, 2 H. Black., 402.1 I think it, then, fully established, that in the United States a creditor of the foreign bankrupt may attach the debt due the for- eign bankrupt, and apply the money to the satisfaction of his pe- culiar debt, to the prejudice of the rights of the assignees or other creditors. I do not here speak of assignees, or rights created, under the bankrupt's own deed; those stand on a different ground, and do not affect this question. I confine myself to assignments, or trans- fers, resting on the operation of the laws of the country, independ- OGBEN V. SAUNDERS. 447 ent of the bankrupt's deedj to the rights and liabilities of debtor, creditor, bankrupt, and assignees, as created by law. Wliat is the actual bearing of this right to attach, so generally recognized by our decisions? It imports a general abandonment of the British principles; for, according to their laws, the assignee alone has the power to release the debtor. Eut the right to attach necessarily implies the right to release the debtor, and that right is here asserted under the laws of a State which is not the State of the contract. So, also, the creditor of the bankrupt is, by the laws of his country, entitled to no more than a ratable participation in the bankrupt's effects. Bui the right to attach imports a right to ex- clusive satisfaction, if the effects so attached should prove adequate to make satisfaction. The right to attach also imports the right to sue the bankrupt; and who would impute to the bankrupt law of another country, the power to restrain the citizens of these States in the exercise of their right to go into the tribunals of their own coimtry for the recovery of debts, wherever they may have originated? Yet, uni- versally, after the law takes the bankrupt into its own hands, his creditors are prohibited from suing. Thus much for the law of this case in an international view. I will consider it with reference to the provisions of the constitution. I have said above, that I had no doubt the erection of a distinct tribunal for the resort of citizens of other States, was introduced ex industria, into the constitution, to prevent, among other evils, the assertion of a power over the rights of the citizens of other States, upon the metaphysical ideas of the British courts on the subject of jurisdiction over contracts. And there was good reason for it; for, upon that principle it is, that a power is asserted over the rights of creditors which involves a mere mockery of justice. Thus, in the case of Burrows v. Jamineau (reported in 3 Strange, and better reported in Moseley, 1, and some other books), the creditor, residing in England, was cited, probably, by a placard on a door-post in Leghorn, to appear there to answer to his debtor; and his debt passed upon by tie court, perhaps, without his having ever heard of the institution of legal process to destroy it. The Scotch, if I remember correctly, attach the summons on the flagstaff, or in the market-place, at the shore of Leith; and the civil law process by proclamation, or viis et modis, is not much better, as the 'means of subjecting the rights of foreign creditors to their tribunals. All this mockery of justice, and the jealousies, recriminations. 448 CASES ON CONSTITUTIONAL^ LAW. and perhaps retaliations which might grow out of it are avoided, if the power of the States over contracts, after they become the subject exclusively of judicial cognizance, is limited to the con- troversies of their own citizens. And it does appear to me almost incontrovertible, that the States cannot proceed one step further without exercising a power incompatible with the acknowledged powers of other States, or of the United States, and with the rights of the citizens of other States. Every banlcrupt or insolvent system in the world must partake of the character of a judicial investigation. Parties whose rights are to be affected, are entitled to a hearing. Hence every system, in common with the particular system now before us, professes to summon the creditors before some tribunal, to show cause against granting a discharge to the bankrupt. But on what principle can a citizen of another State be forced into the courts of a State for this investigation? The judgment to be passed is to prostrate his rights; and on the subject of these rights the constitution exempts him from the jurisdiction of the state tribunals, without regard to the place where the contract may originate. In the only tribunal to which he owes allegiance, the State insolvent or bankrupt laws cannot be carried into effect; they have a law of their own on the subject;^ and a certificate of discharge under any other law would not be acknowledged as valid even in the courts of the State in which the court of the United States that grants it is held. Where is the reciprocity? Where the reason upon which the state courts can thus exercise a power over the suitors of that court, when that court possesses no such power over the suitors of the state courts? In fact, the constitution takes away the only ground upon which this eminent dominion over particular contracts can be claimed, which is that of sovereignty. For the constitutional suitors in the courts of the United States are not only exempted from the neces- sity of resorting to the state tribunals, but actually cannot be forced into them. If, then, the law of the English courts had ever been practically adopted in this country in the state tribunals, the con- stitution has produced such a radical modification of state power over even their own contracts, in the hands of individuals not subject to their jurisdiction, as to furnish ground for excepting the rights of such individuals from the power which the States un- questionably possess over their own contracts, and their own citizens. 1 2 Stats, at Large, 4. OGDBN V. SAUNDERS. 449 Follo'w ont tlie contrary doctrine in its consequences, and see the absurdity it will produce. The constitution has constituted courts professedly independent of state power in their judicial course; and yet the judgments of those courts are to be vacated, and their prisoners set at large, under the power of the state courts, or of the state laws, without the possibility of protecting themselves from its exercise. I cannot acquiesce in an incompatibility so obvious. No one has ever imagined that a prisoner in confinement, under process from the courts of the United States, could avail himself of the insolvent laws of the State in which the court sits. And the reason is, that those laws are municipal and peculiar, and ap- pertaining exclusively to the exercise of state power in that sphere in which it is sovereign, that is, between its own citizens, between suitors subjected to state power exclusively, in their controversies between themselves. In the courts of the United States, no higher power is asserted than that of discharging the individual in confinement under its own process. This affects not to interfere with the rights of cred- itors in the state courts, against the same individual. Perfect reci- procity would seem to indicate that no greater power should be exercised under state authority over the rights of suitors who belong to the United States jurisdiction. Even although the prin- ciple asserted in the British courts, of supreme and exclusive power over their contracts, had obtained in the courts of the United States, I must think that power has undergone a radical modifi- cation by the judicial powers granted to the United States. I, therefore, consider the discharge, under a state law, as incom- petent to discharge a debt due a citizen of another State; and it follows that the plea of a discharge here set up, is insufficient to bar the rights of the plaintiff. It becomes necessary, therefore, to consider the other errors assigned in behalf of the defendant; and, first, as to the plea of the act of limitations. The statute pleaded here is not the act of Louisiana, but that of New York; and the question is not raised by the facts or aver- ments, whether he could avail himself of that law if the full time had run out before his departure from New York, as was supposed in argument. The plea is obviously founded on the idea that the statute of the State of the contract was generally pleadable in any other State, a doctrine that will not bear argument. The remaining error assigned has regard to the sum for which the judgment is entered, it being for a greater amount than the 29 450 CASES ON CONSTITUTIONAL LAW> nominal amount of the bills of exchange on which the suit was brought, and which are found by the verdict. There has been a defect of explanation on this subject; but from the best information afforded us, we consider the amount for which judgment is entered, as made up of principal, interest, and dam- ages, and the latter as being legally incident to the finding of the bills of exchange, and their non-payment, and assessed by the court under a local practice consonant with that by which the amount of written contracts is determined, by reference to the prothonotary, in many other of our courts. We, therefore, see no error in it. The judgment below will, therefore, be aifirmed. And the purport of this adjudication, as I understand it, is, that as between citizens of the same State, a discharge of a bankrupt by the laws of that State is valid as it affects posterior contracts; that as against creditors, citizens of other States, it is invalid as to all contracts. The propositions which I have endeavored to maintain in the opinion which I have delivered are these: — 1. That the power given to the United States to pass bankrupt laws is not exclusive. 2. That the fair and ordinary exercise of that power by the States does not necessarily involve a violation of .the obligation of contracts, multi fortiori of posterior contracts. 3. But when, in the exercise of that power, the States pass beyond their own limits, and the rights of their own citizens, and act upon the rights of citizens of other States, there arises a con- flict of sovereign power, and a collision with the judicial powers granted to the United States, which renders the exercise of such a power incompatible with the rights of other States, and with the constitution of the United States. Me. Justice Washington, Mb. Justice Thompson, and Mb. Justice Teimble dissented. Mb. Chief Justice Mabshall, Mb. Justice Duvall, and Mb. Justice Stoet, assented to the judgment, which was entered for the defendant in error. Judgment affirmed. CHARLES RIVER BRIDGE v. WARREN BRIDGE. 45X THE PEOPRIETOES OF THE CHARLES EIVER BRIDGE T. THE PROPRIETORS OF THE WARREN BRIDGE ET AL. 11 Peters, 420. Decided 1837. Error to the supreme judicial court of the commonwealth of Massachusetts. The material facts and the nature of the case appear in the opinion of the court. . . . Taney, C. J., delivered the opinion of the court. The questions involved in this case are of the gravest char- acter, and the court have given to them the most anxious and deliberate consideration. The value of the right claimed by the plaintiffs is large in amount; and many persons may no doubt be seriously affected in their pecuniary interests by any decisions which the court may pronounce; and the questions which have been raised as to the power of the several States, in relation to the corporations they have chartered, are pregnant with impor- tant consequences; not only to the individuals who are concerned in the corporate franchises, but to the communities in which they exist. The court are fully sensible that it is their duty, in exer- cising the high powers conferred on them by the constitution of the United States, to deal with these great and extensive interests with the utmost caution; guarding, as far as they have the power to do so, the rights of property, and at the same time carefully ab- staining from any encroachment on the rights reserved to the States. It appears, from the record, that in the year 1650, the legisla- ture of Massachusetts granted to the president of Harvard College "the liberty and power" to dispose of the ferry from Charlestown to Boston, by lease or otherwise, in the behalf and for the behoof of the college; and that, under that grant, the college continued to hold and keep the ferry by its lessees or agents, and to receive the profits of it, until 1785. In the last-mentioned year, a peti- tion was presented to the legislature, by Thomas Russell and others, stating the inconvenience of the transportation by ferries, over Charles River,, and the public advantages that would result from a bridge; and praying to be incorporated for the purpose of erect- ing a bridge in the place where the ferry between Boston and Charlestown was then kept. Pursuant to this petition, the legis- lature, on the 9th of March, 1785, passed an act incorporating a 452 CASES ON CONSTITUTIONAL LAW. company, by the name of "The Proprietors of the Charles Eiver Bridge," for the purposes mentioned in the petition. Under this charter the company were empowered to erect a bridge, in "the place where the ferry was then kept;" certain tolls, were granted, and the charter was limited to forty years, from the first opening of the bridge for passengers; and from the time the toll commenced, until the expiration of this term, the company were to pay two hundred pounds, annually, to Harvard College; and at the expira- tion of the forty years the bridge was to be the property of the commonwealth; "saving (as the law expresses it), to the said col- lege or university, a reasonable annual compensation, for the an- nual income of the ferry, which they might have received had not the said bridge been erected." The bridge was accordingly built, and was opened for passen- gers on the 17th of June, 1786. In 1793, the charter was extended to seventy years, from the opening of the bridge; and at the ex- piration of that time it was to belong to the commonwealth. The corporation have regularly paid to the college the annual sum of two hundred pounds, and have performed all of the duties imposed on them by the terms of their charter. In 1828, the legislature of Massachusetts incorporated a com- pany by the name of "The Proprietors of the Warren Bridge," for the purpose of erecting another bridge over Charles River. This bridge is only sixteen rods, at its commencement, on the Charles- town side, from the commencement of the bridge of the plaintiffs; and they are about fifty rods apart at their termination on the Boston side. The travelers who pass over either bridge, proceed from Charlestown square, which receives the travel of many great public roads leading from the country; and the passengers and travellers who go to and from Boston used to pass over the Charles Eiver Bridge, from and through this square, before the erection of the Warren Bridge. The Warren Bridge, by the terms of its charter, was to be sur- rendered to the State, as soon as the expenses of the proprietors in building and supporting it should be reimbursed; but this period was not, in any event, to exceed six years from the time the company commenced receiving toll. When the original bill in this case was filed, the Warren Bridge had not been built; and the bill was filed after the passage of the law, in order to obtain an injunction to prevent its erection, and for general relief. The bill, among other things, charged, as a ground for relief, that the act for the erection of the Warren Bridge impaired the obligation of the contract between the com- CHARLES RIVER BRIDGE v. WARREN BRIDGE. 453 monwealth and the proprietors of the Charies Eiver Bridge; and was therefore repugnant to the constitution of the United States. Afterwards, a supplemental bill was filed, stating that the bridge had then been so far completed, that it had been opened for travel, and that divers persons had passed over, and thus avoided the payment of the toll, which would otherwise have been received by the plaintiffs. The answer to the supplemental bill admitted that the bridge had been so far completed that foot passengers could pass; but denied that any persons but the workmen and the superintendents had passed over with their consent. In this state of the pleadings, the cause came on for hearing in the supreme judicial court for the county of Suffolk, in the common- wealth of Massachusetts, at November term, 1839; and the court decided that the act incorporating the Warren Bridge did not impair the obligation of the contract with the proprietors of the Charles Eiver Bridge, and dismissed the complainants' bill: and the case is brought here by writ of error from that decision. It is, however, proper to state, that it is understood that the state court was equally divided upon the question; and that the decree dismissing the bill upon the ground above stated, was pronounced by a majority of the court, for the purpose of enabling the com- plainants to bring the question for decision before this court. In the argument here, it was admitted, that since the filing of the supplemental bill, a sufficient amount of toll had been received by the proprietors of the Warren Bridge to reimburse all their expenses, and that the bridge is now the property of the State, and has been made a free bridge; and that the value of the franchise granted to the proprietors of the Charles River Bridge has by this means been entirely destroyed. If the complainants deemed these facts material, they ought to have been brought before the state court, by a supplemental bill; and this court, in pronouncing its judgment, cannot regularly notice them. But in the view which the court take of this sub- ject, these additional circumstances would not in any degree influ- ence their decision. And as they are conceded to be true, and the case has been argued on that ground, and the controversy has been for a long time depending, and all parties desire a final end of it; and as it is of importance to them, that the principles on which this court decide should not be misunderstood, the case will be treated in the opinion now delivered, as if these admitted facts were regularly before us. A good deal of evidence has been offered to show the nature and extent of the ferry right granted to the college; and also to 454 CASES ON CONSTITUTIONAL LAW. show the rights claimed by the proprietors of the bridge at dif- ferent times, by virtue of their charter; and the opinions enter- tained by committees of the legislature, and others, upon that subject. But as these circumstances do not affect the judgment of this court, it is unnecessary to recapitulate them. The plaintiffs in error insist, mainly, upon two grounds: 1. That by virtue of the grant of 1650, Harvard College was entitled, in perpetuity, to the right of keeping a ferry between Charlestown and Boston; that this right was exclusive; and that the legislature had not the power to establish another ferry on the same line of travel, because it would infringe the rights of the college; and that these rights, upon the erection of the bridge in the place of the ferry, under the charter of 1785, were transferred to, and became vested in "the proprietors of the Charles Eiver Bridge;" and that under, and by virtue of this transfer of the ferry right, the rights of the bridge company were as exclusive in that line of travel, as the rights of the ferry. 3. That inde- pendently of the ferry right, the acts of the legislature of Massa- chusetts of 1785 and 1793, by their true construction, necessarily implied that the legislature would not authorize another bridge, and especially a free one, by the side of this, and placed in the same line of travel, whereby the franchise granted to the "pro- prietors of the Charles Eiver Bridge" should be rendered of no value; and the plaintiffs in error contend, that the grant of Jhe ferry to the college, and of the charter to the proprietors of the bridge, are both contracts on the part of the State; and that the law authorizing the erection of the Warren Bridge in 1838 impairs the obligation of one or both of these contracts. It is very clear, that in the form in which this case comes before us, being a writ of error to a state court, the plaintiffs, in claim- ing under either of these rights, must place themselves on the ground of contract, and cannot support themselves upon the prin- ciple that the law divests vested rights. It is well settled by the decisions of this court, that a state law may be retrospective in its character, and may divest vested rights, and yet not violate the constitution of the United States, unless it also impairs the obli- gation of a contract. In 3 Peters, 413, Satterlee v. Matthewson, this court, in speaking of the state law then before them, and inter- preting the article in the constitution of the United States which forbids the States to pass laws impairing the obligation of con- tracts, uses the following language: "It (the state law) is said to be retrospective; be it so. But retrospective laws which do not impair the obligation of contracts, or partake of the character CHARLES RIVER BRIDGE v. WARREN BRIDGE. 455 of ex post facto laws, are not condemned or forbidden by any part of that instrument" (the constitution of the United States). And in another passage in the same case, the court say: "The objec- tion, however, most pressed upon the court, and relied upon by the counsel for the plaintiff in error, was, that the effect of this act was to divest rights which were vested by law in Satterlee. There is certainly no part of the constitution of the United States which applies to a state law of this description; nor are we aware of any decision of this, or of any circuit court, which has con- demned such a law upon this ground, provided its effect be not to impair the obligation of a contract." The same principles were reaffirmed in this court, in the late case of Watson and others v. Mercer, decided in 1834, 8 Pet., 110: "As to the first point (say the court), it is clear that this court has no right to pronounce an act of the state legislature void, as contrary to the constitution of the United States, from the mere fact that it divests antecedent vested rights of property. The constitution of the United States does not prohibit the States from passing retrospective laws gen- erally, but only ex post facto laws." After these solemn decisions of this court, it is apparent that the plaintiffs in error cannot sustain themselves here, either upon the ferry right, or the charter to the bridge, upon the ground that vested rights of property have been divested by the legisla- ture. And whether they claim under the ferry right, or the char- ter to the bridge, they must show that the title which they claim, was acquired by contract, and that the terms of that contract have been violated by the charter to the Warren Bridge. In other words, they must show that the State had entered into a contract with them, or those under whorn they claim, not to establish a free bridge at the place where the Warren Bridge is erected. Such, and such only, are the principles upon which the plaintiffs in error can claim relief in this case. The nature and extent of the ferry right granted to Harvard College, in 1650, must depend upon the laws of Massachusetts; and the character and extent of this right has been elaborately discussed at the bar. But in the view which the court take of the case before them, it is not necessary to express any opinion on these questions. For assuming that the grant to Harvard College, and the charter to the bridge company, were both contracts, and that the ferry right was as extensive and exclusive as the plain- tiffs contend for; still they cannot enlarge the privileges granted to the bridge, unless it can be shown, that the rights of Harvard College in this ferry have, by assignment, or in some other way. 456 CASES ON CONSTITUTIONAL LAW. been transferred to the proprietors of the Charles Eiver Bridge, and still remain in existence, vested ia them, to the same extent with that in which they were held and enjoyed by the college before the bridge was built. . . , [The court holds that this cannot be shown.] It is however said, that the payment of the £200 a year to the college, as provided for in the law, gives to the proprietors of the bridge an equitable claim to be treated as the assignees of their interest; and by substitution, upon chancery principles, to be clothed with all their rights. The answer to this argument is obvious. This annual sum was intended to be paid out of the proceeds of the tolls which the company were authorized to collect. The amount of the tolls, it must be assumed, was graduated with a view to this encum- brance, as well as to every other expenditure to which the com- pany might be subjected, under the provisions of their charter. The tolls were to be collected from the public, and it was intended that the expense of the annuity to Harvard College should be borne by the public; and it is manifest that it was so borne, from the amount which it is admitted they received, until the Warren Bridge was erected. Their agreement, therefore, to pay that sum can give no equitable right to be regarded as the assignees of the college, and certainly can furnish no foundation for presuming a conveyance; and as the proprietors of the bridge are neither the legal nor equitable assignees of the college, it is not easy to per- ceive how the ferry franchise can be invoked in aid of their claims, if it were even still a subsisting privilege; and had not been re- sumed by the State, for the purpose of buUding a bridge in its place. Neither can the extent of the pre-existing ferry right, whatever it may have been, have any influence upon the construction of the written charter for the bridge. It does not, by any means, follow, that because the legislative power in Massachusetts, in 1650, may have granted to a justly favored seminary of learning the exclusive right of ferry between Boston and Charlestown, they w^ould, in 1785, give the same extensive privilege to another corporation, who were about to erect a bridge in the same place. The fact that such a right was granted to the college cannot, by any sound rule of construction, be used to extend the privileges of the bridge company beyond what the words of the charter naturally and legally import. Increased population longer experienced in legislation, the different character of the corporation which owned the ferry from that which owned the bridge, might well have induced a CHARLES RIVER BRIDGE v. WARREN BRIDGE. 457 change in the policy of the State in this respect; and as the franchise of the ferry, and that of the bridge, are different in their nature, and were each established by separate grants, which have no words to connect the privileges of the one with the privi- leges of the other, there is no rule of legal interpretation which would authorize the court to associate these grants together, and to infer that any privilege was intended to be given to the bridge company, merely because it had been confererd on the ferry. The charter to the bridge is a written instrument which must speak for itself, and be interpreted by its own terms. This brings us to the act of the legislature of Massachusetts, of 1785, by which the plaintiffs were incorporated by the name of "The Proprietors of the Charles Eiver Bridge j" and it is here, and in the law of 1792, prolonging their charter, that we must look for the extent and nature of the franchise conferred upon the plaintiffs. Much has been said in the argument of the principles of con- struction by which this law is to be expounded, and what under- takings, on the part of the State, may be implied. The court think there can be no serious difficulty on that head. It is the grant of certain franchises by the public to a private corporation, and in a matter where the public interest is concerned. The rule of construction in such cases is well settled, both in England and by the decisions of our own tribunals. In 2 Barn. & Adol., 793, in the case of the proprietors of the Stourbridge Canal v. Wheeley and others, the court say, "The canal having been made under an act of parliament, the rights of the plaintiffs are derived entirely from that act. This, like many other cases, is a bargain between a company of adventurers and the public, the terms of which are expressed in the statute; and the rule of construction, in all such cases, is now fully established to be this; that any ambiguity in the terms of the contract must operate against the adventurers, and in favor of the public, and the plaintiffs can claim nothing that is not clearly given them by the act." And the doc- trine thus laid down is abundantly sustained by the authorities referred to in thig^ decision. The case itself was as strong a one as could well be imagined for giving to the canal company, by implication, a right to the tolls they demanded. Their canal had been used by the defendants, to a very considerable extent, iu transporting large quantities of coal. The rights of all persons to navigate the canal were expressly secured by the act of parlia- ment; so that the company could not prevent them from using it, and the toll demanded was admitted to be reasonable. Yet, 458 CASES ON CONSTITUTIONAL LAW. as they only used one of the levels of the canal, and did not pass through the locks; and the statute, in giving the right to exact toll, had given it for articles which passed "through any one or more of the locks," and had said nothing as to toll for navigating one of the levels; the court held that the right to demand toll, in the latter case, could not be implied, and that the company were not entitled to recover it. This was a fair case for an equitable construction of the act of incorporation, and for an implied grant; if such a rule of construction could ever be permitted in a law of that description. For the canal had been made at the expense of the company; the defendants had availed themselves of the fruits of their labors, and used the canal freely and extensively for their own profit. Still the right to exact toll could not be implied, because such a privilege was not found in the charter. Borrowing, as we have done, our system of jurisprudence from the English law; and having adopted, in every other case, civil and criminal, its rules for the construction of statutes; is there anything in our local situation, or in the nature of our political instituti9ns, which should lead us to depart from the principle where corporations are concerned? Are we to apply to acts of incorporation a rule of construction differing from that of the Eng- lish law, and, by implication, make the terms of a charter in one of the States, more unfavorable to the public, than upon an act of parliament, framed in the same words, would be sanctioned in an English court? Can any good reason be assigned for excepting this particular class of cases from the operation of the general principle, and for introducing a new and adverse rule of construc- tion in favor of corporations, while we adopt and adhere to the rules of construction known to the English common law, in every other case, without exception? We think not; and it would present a singular spectacle, if, while the courts in England are restrain- ing, within the strictest limits, the spirit of monopoly, and exclu- sive privileges in nature of monopolies, and confining corporations to the privileges plainly given to them in their charter, the courts of this country should be found enlarging these privileges by implication; and construing a statute more unfavorably to the public, and to the rights of the community, than would be done in a like case in an English court of justice. But we are not now left to determine, for the first time, the rules by which public grants are to be construed in this country. The subject has already been considered in this court; and the rule of construction, above stated, fully established. [Here follow CHAKLES RIVER BRIDGE v. WARREN BRIDGE 459 citations to U. S. v. Arredondo, 6 Pet., 738; Jackson v. Lam- phire, 3 Pet., 289; and Beaty v. The Lessee of Knowles, 4 Pet., 168.] But the ease most analogous to this, and in which the question came more directly before the court, is the case of the Providence Bank v. Billings and Pittman, 4 Pet., 514, and which was decided in 1830. In that case, it appeared that the legislature of Ehode Island had chartered the bank, in the usual form of such acts of incorporation. The charter contained no stipulation on the part of the State, that it would not impose a tax on the bank, nor any reservation of the right to do so. It was silent on this point. Afterwards, a law was passed, imposing a tax on all banks in the State; and the right to impose this tax was resisted by the Provi- dence Bank, upon the ground that, if the State could impose a tax, it might tax so heavily as to render the franchise of no value, and destroy the institution; that the charter was a contract, and that a power which may in effect destroy the charter is inconsistent with it, and is impliedly renounced by granting it. But the court said that the taxing power was of vital importance, and essential to the existence of government; and that the relinquishment of such a power is never to be assumed. And in. delivering the opin- ion of the court, the late chief justice states the principle, in the following clear and emphatic language. Speaking of the taxing power, he says, "as the whole community is interested in retaining it undiminished, that community has a right to insist that its abandonment ought not to be presumed, in a case in which the deliberate purpose of the State to abandon it does not appear." The case now before the court is, in principle, precisely the same. It is a charter from a State. The act of incorpora- tion is silent in relation to the contested power. The argu- ment in favor of the proprietors of the Charles Eiver Bridge is the same, almost in words, with that used by the Providence Bank; that is, that the power claimed by the State, if it exists, may be so used as to destroy the value of the franchise they have granted to the corporation. The argument must receive the same answer; and the fact that the power has been already exercised so as to destroy the value of the franchise, cannot in any degree affect the principle. The existence of the power does not, and cannot, depend upon the circumstance of its having been exercised or not. It may, perhaps, be said that in the case of the Providence Bank, this court were speaking of the taxing power; which is of vital importance to the very existence of every government. But the object and end of aU government is to promote the happiness 4G0 CASES ON CONSTITUTIONAL LAW. and prosperity of the community by which it is established; and it can never be assumed, that the government intended to diminish its power of accomplishing the end for which it was created. And in a country like ours, free, active, and enterprising, continually advancing in numbers and wealth, new channels of communica- tion are daily found necessary, both for travel and trade; and are essential to the comfort, convenience, and prosperity of the peo- ple. A State ought never to be presumed to surrender this power, because, like the taxing power, the whole community have an interest in preserving it undiminished. And when a corporation alleges, that a State has surrendered, for seventy years, its power of improvement and public accommodation, in a great and impor- tant line of travel, along which a vast mimber of its citizens must daily pass, the community have a right to insist, in the language of this court above quoted, "that its abandonment ought not to be presumed in a case in which the deliberate purpose of the State to abandon it does not appear." The continued existence of a gov- ernment would be of no great value, if by implications and pre- sumptions it was disarmed of the powers necessary to accomplish the ends of its creation; and the functions it was designed to perform, transferred to the hands of privileged corporations. The rule of construction announced by the court was not confined to the taxing power; nor is it so limited in the opinion delivered. On the contrary, it was distinctly placed on the ground that the interests of the community were concerned in preserving, undi- minished, the power then in question; and whenever any power of the State is said to be surrendered or diminished, whether it be the taxing power or any other affecting the public interest, the same principle applies, and the rule of construction must be the same. No one will question that the interests of the great body of the people of the State would, in this instance, be affected by the surrender of this great line of travel to a single corporation, with the right to exact toll, and exclude competition for seventy years. While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and well-being of every citizen depends on their faithful preservation. Adopting the rule of construction above stated as the settled one, we proceed to apply it to the charter of 1785 to the proprietors of the Charles River Bridge. This act of incorporation is in the usual form, and the privileges such as are commonly given to cor- porations of that kind. It confers on them the ordinary faculties of a corporation, for the purpose of building the bridge; and CHARLES RIVER BRIDGE v. WARREN BRIDGE. 461 establishes certain rates of toll, which the company are author- ized to take. This is the whole grant. There is no exclusive priv- ilege given to them over the waters of Charles Eiver above or below their bridge. No right to erect another bridge themselves, nor to prevent other persone from erecting one. No engagement from the State that another shall not be erected; and no under- taking not to sanction competition, nor to make improvements that may diminish the amount of Its income. Upon all these sub- jects the charter is silent; and nothing is said in it about a line of travel, so much insisted on in the argument, in which they are to have exclusive privileges. No words are used from which an intention to grant any of these rights can be inferred. If the plaintiff is entitled to them, it must be implied, simply from the nature of the grant, and cannot be inferred from the words by which the grant is made. The relative position of the Warren Bridge has already been de- scribed. It does not interrupt the passage over the Charles River Bridge, nor make the way to it or from it less convenient. None of the faculties or franchises granted to that corporation have been revoked by the legislature; and its right to take the tolls granted by the charter remains unaltered. In short, all the fran- chises and rights of property enumerated in the charter, and there mentioned to have been granted to it remain unimpaired. But its income is destroyed by the Warren Bridge; which, being free, draws off the passengers and property which would have gone over it, and renders their franchise of no value. This is the gist of the complaint. For it is not pretended that the erection of the Warren Bridge would have done them any injury, or in any degree affected their right of property, if it had not dimin- ished the amount of their tolls. In order then to entitle them- selves to relief, it is necessary to show that the legislature con- tracted not to do the act of which they complain; and that they impaired or, in other words, violated that contract by tho erection of the Warren Bridge. The inquiry then is, does the charter contain such a contract on the part of the State? Is there any such stipulation to be found in that instrument? It must be admitted on all hands, that there is none, — no words that even relate to another bridge, or to the diminution of their tolls, or to the line of travel. If a contract on that subject can be gathered from the charter, it must be by implication, and cannot be found in the words used. Can such an a<^reement be implied? The rule of construction before stated is an answer to the question. In charters of this description, no 462 CASES ON CONSTITUTIONAL LAW. righte are taken from the public, or given to the corporation, beyond those which the words of the charter, by their natural and proper construction, purport to convey. There are no words which import such a contract as the plaintiffs in error contend for, and none can be implied; and the same answer must be given to them that was given by this court to the Providence Bank. The whole community are interested in this inquiry, and they have a right to require that the power of promoting their comfort and conveni- ence, and of advancing the public prosperity by providing safe, convenient, and cheap ways for the transportation of produce and the purposes of travel, shall not be construed to have been surren- dered or diminished by the State, unless it shall appear by plain words that it was intended to be done. But the case before the court is even still stronger against any such implied contract as the plaintiffs in error contend for. The Charles Eiver Bridge was completed in 1786. The time limited for the duration of the corporation by their original char- ter expired in 1826. When, therefore, the law passed author- izing the erection of the "Warren Bridge, the proprietors of Charles Eiver Bridge held their corporate existence under the law of 1793, which extended their charter for thirty years; and the rights, privileges, and franchises of the company must depend upon the construction of the last-mentioned law, taken in connection with the act of 1785. The act of 1793, which extends the charter of this bridge, incor- porates another company to build a bridge over Charles Eiver; furnishing another communication with Boston, and distant only between one and two miles from the old bridge. The first six sections of this act incorporate the proprietors of the West Boston Bridge, and define the privileges, and describe the duties, of that corporation. In the 7th section there is the following recital: "And whereas the erection of Charles Eiver Bridge was a work of hazard and public utility, and another bridge in the place of West Boston Bridge may diminish the emoluments of Charles Eiver Bridge; therefore, for the encouragement of enter- prise," tliey proceed to extend the charter of the Charles Eiver Bridge, and to continue it for the term of seventy years from the day the bridge was completed; subject to the conditions prescribed in the original act, and to be entitled to the same tolls. It appears, then, that by the same act that extended this charter, the legisla- ture established another bridge, which they knew would lessen its profits; and this, too, before the expiration of the first charter. CHARLES RIVER BRIDGE v. WARREN BRIDGE. 463 and only seven years after it was granted; thereby showing that the State did not suppose that, by the terms it had used in the first law, it had deprived itself of the power of making such public improvements as might impair the profits of the Charles Kiver Bridge; and from the language used in the clauses of the law by which the charter is extended, it would seem, that the legislature were especially careful to exclude any inference that the exten- sion was made upon the ground of compromise with the bridge company, or as a compensation for rights impaired. On the contrary, words are cautiously employed to exclude that conclusion; and the extension is declared to be granted as a reward for the hazard they had run, and "for the encouragement of enter- prise." The extension was given because the company had under- taken and executed a work of doubtful success; and the improve- ments which the legislature then contemplated, might diminish the emoluments they had expected to receive from it. It results from this statement, that the legislature, in the very law extend- ing the charter, asserts its rights to authorize improvements over Charles Eiver which would take off a portion of the travel from this bridge and diminish its profits; and the bridge company accept the renewal thus given, and thus carefully connected with this assertion of the right on the part of the State. Can they, when holding their corporate existence under this law, and de- riving their franchises altogether from it, add to the privileges expressed in their charter an implied agreement, which is in direct conflict with a portion of the law from which they derive their corporate existence? Can the legislature be presumed to have taken upon themselves an implied obligation, contrary to its own acts and declarations contained in the same law? It would be difficult to find a case justifying such an implication, even between individuals; still less will it be found where sovereign rights are concerned, and where the interests of a whole community would be deeply affected by such an implication. It would, indeed, be a strong exertion of judicial power, acting upon its own views of what justice required, and the parties ought to have done, to raise, by a sort of judicial coercion, an implied contract, and infer it from the nature of the very instrument in which the legislature appear to have taken pains to use words which disavow and repxi- diate any intention, on the part of the State, to make such a contract. Indeed, the practice and usage of almost every State in the .Union, old enough to have commenced the work of internal im- 464 CASES ON CONSTITUTIONAL LAW. provement, is opposed to the doctrine contended for on the part of the plaintiEEs in error. Turnpike roads have been made in suc- cession, on the same line of travel; the latter one interfering ma- teriallj'^ with the profits of the first. These corporations have, in some instances, been utterly ruined by the introduction of newer and better modes of transportation and traveling. In some cases, railroads have rendered the turnpike roads on the same line of travel so entirely useless, that the franchise of the turnpike cor- poration is not worth preserving. Yet in none of these cases have the corporations supposed that their privileges were invaded, or any contract violated on the part of the State. Amid the mul- titude of cases which have occiirred, and have been daily occurring for the last forty or fifty years, this is the first instance in which such an implied contract has been contended for, and this court called upon to infer it from an ordinary act of incorporation, containing nothing more than the usual stipulations and provi- sions to be found in every such law. The absence of any such con- troversy, when there must have been so many occasions to give rise to it, proves that neither States, nor individuals, nor corpora- tions, ever imagined that such a contract could be implied from such charters. It shows that the men who voted for these laws never imagined that they were forming such a contract; and if we maintain that they have made it, we must create it by a legal fiction, in opposition to the truth of the fact, and the obvious intention of the party. We cannot deal thus with the rights reserved to the States, and by legal intendments and mere tech- nical reasoning take away from them any portion of that power over their own internal police and improvement which is so neces- sary to their well-being and prosperity. And what would be the fruits of this doctrine of implied con- tracts on the part of the States, and of property in a line of travel by a corporation, if it should now be sanctioned by this court? To what results would it lead us? If it is to be found in the charter to this bridge, the same process of reasoning must discover it, in the various acts which have been passed, within the last forty years, for turnpike companies. And what is to be the extent of the privileges of exclusion on the different sides of the road? The counsel who have so ably argued this case have not attempted to define it by any certain boundaries. How far must the new improvement be distant from the old one? How near may you approach without invading its rights in the privileged line? If this court should establish the principles now contended CHARLES RIVER BRIDGE v. WARREN BRIDGE. 465 for, what is to become of the numerous railroads established on the same line of travel with turnpike companies; and which have rendered the franchises of the turnpike corporations of no value? Let it once be understood that such charters carry with them these implied contracts, and give this unknown and undefined property in a line of travelling, and you will soon find the old turn- pike corporations awakening from their sleep and calling upon this court to put down the improvements which have taken their place. The millions of property which have been invested in rail- roads and canals upon lines of travel which had been before occu- pied by turnpike corporations will be put in jeopardy. We shall be thrown back to the improvements of the last century, and obliged to stand still until the claims of the old turnpike cor- porations shall be satisfied, and they shall consent to permit these States to avail themselves of the lights of modern science, and to partake of the benefit of those improvements which are now add- ing to the wealth and prosperity, and the convenience and com- fort, of every other part of the civilized world. Nor is this all. This court will find itself compelled to fix, by some arbitrary rule, the width of this new kind of property in a line of travel; for if suqh a right of property exists, we have no lights to guide us in marking out its extent, unless, indeed, we resort to the old feudal grants, and to the exclusive rights of ferries, by prescription, between towns, and are prepared to decide that when a turnpike road from one town to another had been made, no railroad or canal, between these two points, could afterwards be established. This court are not prepared to sanction principles which must lead to such results. Many other questions of the deepest importance have been raised and elaborately discussed in the argument. It is not nec- essary, for the decision of this case, to express our opinion upon them; and the court deem it proper to avoid volunteering an opin- ion on any question involving the construction of the constitution, where the case itself does not bring the question directly before them, and make it their duty to decide upon it. Some questions, also, of a purely technical character have been made and argued as to the form of proceeding and the right to relief. But enough appears on the record to bring out the great question in contest; and it is the interest of all parties concerned that the real controversy should be settled without further delay; and as the opinion of the court is pronounced on the main ques- tion in dispute here, and disposes of the whole case, it is altogether 30 466 CASES ON CONSTITUTIONAL LAW. ,i unnecessary to enter upon tie examination, of the forms of pro^ ceeding in which the parties have brought it before the court. The judgment of the supreme judicial court of the commonwealth of Massachusetts, dismissing the plaintiff^ HU, must, therefore, be affirmed, with costs. [Mb. Justice McLean delivered an opinion in which he argued that the ease should be dismissed for want of jurisdiction. Mb. Justice Stoby delivered a dissenting opinion, in which Mb.. Justice Thompson concurred.] XI. CIVIL AND POLITICAL RIGHTS. BAEKON, Etc., t. MAYOK, Etc., of BALTIMORE. 7 Peters, 243. Decided 1833. Eeeor to the court of appeals of the ■vrestem shore of the State of Maryland. Case by the plaintiff in error against the city of Baltimore, to re- reeover damages for injuries to the wharf-property of the plaintiff, arising from the acts of the corporation The city, in the asserted exercise of its corporate authority over the harbor, the paving of streets, and regulating grades for paving, and over the health of Baltimore, diverted from their accustomed and natural course, certain streams of water, which flow from the range of hills bordering the city, and diverted them, so that they made deposits of sand and gravel near the plaintiff's wharf, and thereby rendered the water shallow, and prevented the access of vessels. The decision of Baltimore county court was against the defendants, and a verdict for $4,500 was rendered for the plaintiff. The court of appeals reversed the judgment of Baltimore county court, and did not remand the case to that court for a further trial. From this judgment the defendant in the court of appeals prosecuted a writ of error to this court. . . . Makshall, C. J., delivered the opinion of the court. The judgment brought up by this writ of error having been ren- dered by the court of a State, this tribunal can exercise no jurisdic- tion over it, unless it be shown to come within the provisions of the 25th section of the Judicial Act.^ The plaintiff in error contends that it comes within that clause in the fifth amendment to the constitution, which inhibits the tak- ing of private property for public use, without just compensation. He insists that this amendment,' being in fevor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a State, as well as that of the United States. If this 1 1 Stats, at Large, 85. 467 468 CASES ON CONSTITUTIONAL LAW. proposition be untrue, the court can take no jurisdiction of the cause. The question thus presented is, we think, of great importance, but not of much difficulty. The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State es- tablished a constitution for itself, and, in that constitution, pro- vided such limitations and resMctions on the powers of its partic- ular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily applicable to the government created by the instrument. They are limitations of power granted in the instrument itself; not of distinct governments, framed by different persons and for dif- ferent purposes. If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the States. In their several constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are sup- posed to have a common interest. The counsel for the plaintiff in error insists that the constitu- tion was intended to secure the people of the several States against the undue exercise of power by their respective state governments; as well as against that which might be attempted by their general government. In support of this argument he relies on the inhibi- tions contained in the 10th section of the 1st article. We think that section affords a strong if not a conclusive argu- ment in support of the opinion 'already indicated by the court. The preceding section contains restrictions which are obviously intended for the exclusive purpose of restraining the exercise of power by the departments of the general government. Some of them use language applicable only to congress; othera are expressed in general terms. The third clause, for example, declares that "no bill of attainder or ex post facto law shall be passed." No lan- guage can be more general; yet the demonstration is complete that BARRON V. MAYOR, ETC., OF BALTIMORE. 469 it applies solely to the government of the United States. In addi- tion to the general arguments furnished by the instrument itself, some of which have been already suggested, the succeeding sec- tion, the avowed purpose of which is to restrain state legislation, contains in terms the very prohibition. It declares that "no State shall pass any bill of attainder or ex post facto law." This pro- vision, then, of the 9th section, however comprehensive its lan- guage, contains no restriction on state legislation. The 9th section having enumerated, in the nature of a bill of rights, the limitations intended to be impoeed on the powers of the general government, the 10th proceeds to enumerate those which were to operate on the state legislatures. These restrictions axe brought together in the same section, and are by express words applied to the States. "No State shall enter into any treaty," etc. Perceiving that in a constitution framed by the people of the United States for the government of all, no limitation of the action of government on the people would apply to the state government, unless expressed in terms; the restrictions contained in the 10th section axe in direct words so applied to the States. It is worthy of remark, too, that these inhibitions generally re- strain state legislation on subjects intrusted to the general govern- ment, or in which the people of all the States feel an interest. A State is forbidden to enter into any treaty, alliance, or confed- eration. If these compacts are with foreign nations, they interfere with the treaty-making power, which is conferred entirely on the general government; if with each other, for pohtical purposes, they can scarcely fail to interfere with the general purpose and intent of the constitution. To grant letters of marque and reprisal, would lead directly to war; the power oi declaring which is expressly given to congress. To coin money is also the exercise of a power conferred on congress. It would be tedious to recapitulate the several limitations on the powers of the States which are contained in this section. They will be found, generally, to restrain state legislation on subjects intrusted to the government of the Union, in which the citizens of all the States are interested. In these alone were the whole people concerned. The question of their application to States is not left to construction. It is averred in positive words. If the original constitution, in the 9th and 10th sections of the Ist article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the States; if in every inhibition in- 470 CASES ON CONSTITUTIONAL LAW. tended to act on state power, -words are employed which directly express that intent, — some strong reason must he assigned for departing from this safe and judicious course in framing the amendments, hefore that departure can be assumed. We search in vain for that reason. Had the people of the several States, or any of them, required changes in their constitutions; had they required additional safe- guards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and would have been applied by themselves. A convention would have been assembled by the discontented State, and the required im- provements would have been made by itself. The unwieldy and cumbrous machinery of procuring a recommendation from two thirds of congress, and the assent of three fourths of their sister States, could never have occurred to any human being as a mode of doing that which might be eflEected by the State itself. Had the framers of these amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention. Had congress engaged in the extraordinary occupation of improving the constitutions of the several States by affording the people additional protection from the exercise of power by their own governments in matters -which concerned themselves alone, they would have declared this purpose in plain and intel- ligible language. But it is universally understood, it is a part of the history of the day, that the great revolution which established the constitu- tion of the United States was not effected -without immense oppo- sition. Serious fears were extensively entertained that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those invaluable objects for which union was sought, might be exercised in a manner dangerous to liberty. In almost every convention by which the constitution was adopted, amend- ments to guard against the abuse of power were recommended. These amendments demanded security against the apprehended en- croachments of the general government, not against those of the local governments. In compliance with a sentiment thus generally expressed to quiet fears thus extensively entertained, amendments were proposed by the required majority in congress, and adopted by the States, These amendments contain no expression indicating an intention SCOTT r. SANDFORD. 471 to apply them to the state governments. This court cannot so apply them. We are of opinion that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the States. We are therefore of opinion, that there is no repugnancy between the several acts of the general assemibly of Maryland, given in evidence by the defendants at the trial of this cause, in the court of that State, and the constitution of the United States. This court, therefore, has no Jurisdiction of the cause; and it is dismissed. DEED SCOTT, Plaintiff in Ekeoe, v. JOHN F. A. SAND- FOED. 19 Howard, 393. Decided 1857. This ease was brought up, by writ of error, from the Circuit Court of the United States for the district of Missouri. . . . [In 1834, Dred Scott, a negro slave belonging to Dr. Emerson, a surgeon in the United States army, was taken by his master from Missouri to Eock Island, Illinois, where slavery was prohibited by statute. Thence he was taken, in 1836, to Fort Snelling, in the territory of upper Louisiana. This post was situated on the west bank of the Mississippi, north of latitude 36° 30', and north of Missouri, and hence within the territory in which slavery had been forbidden by the Missouri Compromise. In 1836, with the consent of their master, Dred and Harriet were married. In 1838, Dr. Emerson returned with his slaves to Missouri. In 1847, Dred brought suit in the Missouri circuit court to recover his freedom, having discovered that according to previous decisions of Missouri courts, residence in free territory conferred freedom. Judgment was rendered in his favor, but was reversed by the Missouri su- preme court. Before the commencement of the present suit, Dred and his wife and two children were sold to Sandford, a citizen of New York. Scott having brought suit in trespass for assault and battery against Sandford in the Federal Circuit Court of Mis- souri, Sandford pleaded to the jurisdiction of the court that this could not be a suit between citizens of different States, because 472 CASPS ON CONSTITUTIONAL LAW. Scott was not a citizen of Missouri, but "a negro of pure African descent; his ancestors were of pure African blood and were brought into this country and sold as negro slaves." To this Scott de- murred and the demiurrer was sustained. The defendant then pleaded in bar to the action that the plaintiff was his negro slave, and that he had only gently laid hands on him to restrain him, as he had a right to do. The judge instructed the jury that, "upon the facts in this case, the law is with the defendant." The plaintiff excepted to this instruction, and upon his exceptions the case was taken to the United States Supreme Court. There the case was twice argued, — ^first at December term, 1855, and again at December term, 1856; judgment was deferred until March 6, 1857, in order, says Alexander Johnston, "to avoid any increase of the excitement already attending the presidential election."] Mb. Chief Justice Taney delivered the opinion of the court. There are two leading questions presented by the record: 1. Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? And 3. If it had jurisdiction, is the judgment it has given erroneous or not? The plaintiff in error, who was also the plaintiff in the court below, was, with his wife and children, held as slaves by the. de- fendant, in the State of Missouri; and he brought this action in the Circuit Court of the United States for that district, to assert the title of himself and his family to freedom. The declaration is in the form usually adopted in that State to try questions of this description, and contains the averment necessary to give the couit jurisdiction; that he and the defendant are citizens of different States; that is, that he is a citizen of Missouri, and the defendant a citizen of New York. The defendant pleaded in abatement to the jurisdiction of the court, that the plaintiff was not a citizen of the State of Missouri, as alleged in his declaration, being a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves. To this plea the plaintiff demurred, and the defendant joined in demurrer. The court overruled the plea, find gave judgment that the defendant should answer over. And he thereupon put in sundry pleas in bar, upon which issues were joined; and at the trial the verdict and judgment were in his favor. Whereupon the plaintiff brought this writ of error. SCOTT V, SANDFORD. 473 Before we speak of the pleas in bar, it will be proper to dispose of the questions which have arisen on the plea in abatement. That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated. ... It is suggested, however, that this plea is not before us. . . . We think they [the plea and the judgment of the coxirt upon it] are before us . . . and it becomes, therefore, our duty to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States. . . . The question is simply this: Can a negro, whose ancestors were imported into this country, and sold as slaves, become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, privileges and immunities, guarantied by that instrument to the citizen? One of which rights is the privilege of suing in a court of the United States in the cases specified in the Constitution. . . . And this being the only matter in dispute on the pleadings, this court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves. . . . The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons described in the plea of abatement compose, a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be in- cluded, . under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instru- ment provides for and secures to citizens of the United States. On the contrary they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the domi- nant race, and whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them, . . . 474 CASES ON CONSTITUTIONAL LAW. In discussing this question, we must not confound the rights, of citizenship which a State may confer within its own limits, and the rights of citizenship as a memtjer of the Union. It does not by any means follow, because he has all the rights and privileges of a citizen of a State, that he must be a citizen of the United States. He may have all the rights and privileges of the citizen of a State, and yet not be entitled to the rights and privileges of a citizen in any other State. Por, previous to the adoption of the Constitution of the United States, every State had the undoubted right to confer on whomsoever it pleased the character of citizen, and to endow him with all its rights. But this character of course was confined to the boundaries of the State, and gave him no rights or privileges in other States 'beyond those secured to him by the laws of nations and the comity of States. Nor have the several States surrendered the power of conferring these rights and privi- leges by adopting the Constitution of the United States. Each State may still confer them upon an. alien, or any one it thinks proper, or upon any class or description of persons; yet, he would not be a citizen in the sense in which that word is used in the Constitution of the United States, nor entitled to sue as such in one of its eooirts, nor to the privileges and immunities of- a citizen in the other States. The rights which he would acquire would be restricted to the State which gave them. The Constitution has conferred on Congress the right to establish an uniform rule of naturalization, and this right is evidently exclusive, and has al- ways been held by this court to be so. ConBequently, no State, since the adoption of the Constitution, can, by naturalizing an alien, invest him with the rights and privileges secured to a citizen of a State under the Federal Government, although, so far as the State alone was coneemed, he would undoubtedly be entitled to the rights of a citizen, and clothed with all the rights and im- munities which the Constitution and laws of the State attached to that character. It is very clear, therefore, that no State can, by any act or law of its own, passed since the adoption of the Constitution, introduce a new member into the political community created by the Consti- tution of the United States. It cannot make him a member of this community by making him a member of its own. Aad for the same reason it cannot introduce any person, or descripticm of persons, who were not intended to be embraced in this new political family, which the Constitution brought into existence, bat were intended to be excluded from it. SCOTT V. SANDFORD. 4T5 Tlie question then arises, whether the provisions of the Constitu- tion, in relation to the personal rights and privileges to which the citizen of a State should be entitled, embraced the n^ro African race, at that time in this country, or who might afterward be im- ported, who had then or should afterwards be made free in any State; and to put it in the power of a single State to make him a citizen of the United States, and endow him with the full rights of citizenship in every other State without their consent? Does the Constitution of the United States act upon him whenever he shall be made free under the laws of a State, and raised then to the rank of a citizen, and immediaialy clothe him with all the privi- leges of a citizen in every other State, and in its own courts? The court think the affirmative of these propositions cannot be maintained. And if it cannot, the plaintiff in error could not be a citizen of the State of Missouri, within the meaning of the Con- stitution of the United Statesi, and, consequently, was not entitled to sue in its courts. It is true, every person, and every class and description of per- sons, who were at the time of the adoption of the Constitution recognized as citizens in the several States, became also citizens of this new political body; but none othigr; it was formed by them, ■and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should after- wards, by birthright or otherwise, becom.e members, according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it, gave to each citizen rights and privileges outside of his State which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States. It becomes necessary, therefore, to determine who were citizens •of the several States when the Constitution was adopted. And in order to do this, we must recur to the Governments and institutions of the thirteen colonies, when they separated from Great Britain and formed new sovereignties, and took their places in the family of independent nations. We must inquire who, at that time, were 476 CASES ON CONSTITUTIONAL LAW. recognized as the people or citizens of a State, whose rights and liberties had been outraged by the English Government; and who declared their independence, and assumed the powers of Govern- ment to defend their rights by force of arms. In the opinion of the court, the legislation and histories of the times, and the language used in the Declaration of Independence, ehow, that neither the class of persons who had been imported as slaves, nor their descendants, whether they had become 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 instru- ment. . . . They had for more than a century before been regarded as be- ings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be re- duced to slavery for his benefit. . . . The legislation of the different colonies furnishes positive and indisputable proof of this fact. . . . The language of the Declaration of Independence is equally conclusive This state of public opinion had undergone no change when the Con- stitution was adopted, as is equally evident from its provisions and language. . . . But there are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed. One of these clauses reserves to each of the thirteen States the right to import slaves until the year 1808, if it thinks proper. . . . And by the other provision the States pledge themselves to each other to maintain the right of property of the master, by de- livering up to him any slave who may have escaped from his ser- vice, and be found within their respective territories. . . . The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upoji whom they had impressed such deep SCOTT V. SANDFORD. 477 and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protec- tion of the liberties and rights of their citizens. It cannot be sup- posed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slave-holding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to re- ceive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citi- zens, it would exempt them from the operation of the special laws and from the police regulations which they considered to be neces- sary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, withooit pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordina- tion among them, and endangering the peace and safety of the State. . . . To all this mass of proof we have still to add, that Congress has repeatedly legislated upon the same construction of the Constitu- tion that we have given. Three laws, two of which were passed almost immediately after the Government went into operation, will be abundantly sufficient to show this. . . . The first of these acts is the naturalization law, which was passed at the second session of the first Congress, March 26, 1790, and confines the right of becoming citizens "to aliens being free white persons." . . . Another of the early laws of which we have spoken, is the first militia law, which was passed in 1792, at the first session of the 478 CASES ON CONSTITUTIONAL LAW. second Congress. ... It directs that every "free able-bodied white male citizen" shall be enrolled in the militia. . . . The third act to which we have alluded is still more decisive; it was passed as late as 1813 (2 Stat., 809), and it provides: "That from and after the termination of the war in which the United States are now engaged with Great Britain, it shall not be lawful to employ, on board of any public or private vessels of the United States, any person or persons except citizens of the United States, or persons of color, natives of the United States," . . . The conduct of the Executive Department of the Government has been in perfect harmony upon this subject with this course of legislation. The question was brought officially before the kte William Wirt, when he was the Attorney General of the United States, in 1821, and he decided that the words "citizens of the United States" were used in the acts of Congress in the same sense as in the Constitution; and that free persons of color were not citizens, within the meaning of the Constitution and laws; and this opinion has been confirmed by that of the late Attorney Gen- eral, Caleb Gushing, in a recent case, and acted upon by the Secre- tary of State, who refused to grant passports to them as "citizens of the United States." But it is said that a person may be a citizen, and entitled to that character, although he does not possess all the rights which may be- long to other citizens; as, for example, the right to vote, or to hold particular offices; and that yet, when he goes into another State, he is entitled to be recognized there as a citizen, although the State may measure his rights by the rights which it allows to persons of a like character or class resident in the State, and refuse to him the full rights of citizenship. This argument overlooks the language of the provision in the Constitution of which we are speaking. Undoubtedly, a person may be a citizen, that is, a member of the community who form the sovereignty, although he exercises no share of the political power, and is incapacitated from holding par- ticular offices. Women and minors, who form a part of the polit- ical family, cannot vote; and when a property qualification is re- quired to vote or hold a particular office, those who have not the necessary qualification cannot vote or hold office, yet they are citizens. So, too, a person may be entitled to vote by the law of the State, who is not a citizen even of the State itself. And in some of the States of the Union foreigners not naturalized are allowed to vote. SCOTT V. SANDFORD. 479 And the State may give the right to free negroes and mulattoes, but that does not make them citizens of the State, and still less of the United States. And the provision in the Constitution giv- ing privileges and immunities in other States, does not apply to them. Neither does it apply to a person who, being the citizen of a State, migrates to another State. Por then he becomes subject to the laws of the State in which he lives, and he is no longer a citizen of the State from which he removed. And the State in which he resides may then, unquestionably, determine his status or condition, and place him among the class of persons who are not recognized as citizens, but belong to an inferior and subject race; and may deny him the privileges and immunities enjoyed by its citizens. But so far as mere rights of person are concerned, the provision in question is confined to citizens of a State who are temporarily in another State without taking up their residence there. It gives them no political rights in the State as to voting or holding office, or in any other respect. For a citizen of one State has no right to participate in the government of another. But if he ranks as a citizen in the State to which he belongs, within the meaning of the Constitution of the United States, then, whenever he goes into another State, the Constitution clothes him, as to the rights of person, with all the privileges and immunities which belong to citizens of the State. And if persons of the African race are citi- zens of a State, and of the United States, they would be entitled to all of these privileges and immunities in every State, and the State could not restrict them; for they would hold these privileges and immunities under the paramount authority of the Federal Government, and its courts would be bound to maintain and en^- force them, the Constitution and laws of the State to the contrary notwithstanding. And if the States could limit or restrict them, or place the party in an inferior grade, this clause of the Constitu- tion would be unmeaning, and could have no operation; and would give no rights to the citizen when in another State. He would have none but what the State itself chose to allow him. This is evidently not the construction or meaning of the clause in ques- tion. It guaranties rights to the citizen, and the State cannot withhold them. And these rights are of a character and would lead to consequences which make it absolutely certain that the African rac^ were not included under the name of citizens of a State, and were not in the contemplation of the framers of the 480 CASES ON CONSTITUTIONAL LAW. Constitution wlien these privileges and immunities were provided for the protection of the citizens in other States. . . . What the construction [of the Constitution] was at that time [when it was framed], we think can hardly admit of doubt. Wehave the language of the Declaration of Independence and of the Articles of Confederation, in addition to the plain words of the Constitution itself; we have the legislation of the different States, before, aibout the time, and since, the Constitution was adopted; we have the legislation of Congress, from the time of its adoption to a recent period; and we have the constant and uniform action of the Execu- tive Department, all concurring together, and leading to the same result. And if anything in relation to the construction of the Constitution can be regarded as settled, it is that which we now give to the word "citizen" and the word "people." And upon a full and careful consideration of the subject, the court is of opinion, that, upon the facts stated in the plea in abate- ment, Dred Scott was not a citizen of Missouri within the meaning of the Constitution of the United States, and not entitled as such to sue in its courts; and, consequently, that the Circuit Court had no jurisdiction of the case, and that the judgment on the plea in aibatement is erroneous. . . . [Here follows a discussion of the judicial authority of the court to examine any question in the ease other than that of the jurisdiction of the Circuit Court. The court determines that it has the requisite authority]. We proceed, therefore, to inquire whether the facts relied on by the plaintiff entitled him to his freedom. . . . In considering this part of the controversy, two questions arise: 1. Was he, together with his family, free in Missouri by reason of the stay in the territory of the United States hereinbefore men- tioned? And 2. If they were not, is Scott himself free by rea- son of his removal to Eock Island, in the State of Illinois, as stated in the above admissions? We proceed to examine the first question. The act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as a punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not in- cluded within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorized to pass this law, under any of the powers 'granted to it by the Constitution; for if the authority is not given SCOTT V. SANDFORD. 481 by that instniineiitj it is the duty of this eoiirt to declate it void Bind inoperative, and incapable of conferring freedom upon any one who is held as a slave Tinder the laws of any one of the States. The counsel for the plaintifi; has laid much stress upon that ar- ti-cle in the Constitution which confers on Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States;" but, in the judgment of the court, that provision has no bearing on the present controversy, and the power there given, whatever it may be, is confined, and was intended to be confined, to the territory which at that time belonged to, or was claimed by, the United States, and was within their boundaries as settled by the treaty with Great Britain, and can have no influence upon a territory afterwards ac- quired from a foreign Government. It was a special provision for a known and particular territory, and to meet a present emergency, and nothing more. ... It was intended for a specific purpose, to provide for the things we have mentioned. It was to transfer to the new Government the property then held in common by the States, and to give to that Government power to apply it to the objects for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and has no reference whatever to any territory or other property which the new sovereignty might afterwards itself acquire. . . . At the time when the territory in question was obtained by ces- sion from Fnanee, it contained no population fit to be associated together and admitted as a State; and it therefore was absolutely necessary to hold possession of it, as a Territory belonging to the United States, until it was settled and inhabited by a civilized community capable of self-government, land in a condition to be admitted on equal terms with the other States as a member of the Union. But, as we have before said, it was acquired by the Genferal Government, as the representative and trustee of the people of the United States, and it moist therefore be held in that character for their common and equal benefit; for it was the people of the sev- eral States, acting through their agent and representative, the Fed- eral Government, who in fact acquired the Territory in question, and the Government holds it for their common use until it shall be associated with the other States as a member of the Union. But until that time arrives, it is undoubtedly necessary that some Government should be established, in order to organize soci- ety, and to protect the inhabitants in their persons and property; 31 483 CASES ON CONSTITUTIONAL LAW. and as the people of the United States could act in this matter only through the Government which represented them, and through ■\diich they spoke and acted when the Territory was obtained, it was not only within the scope of its powers, but it was its duty to pass such laws and establish such a Government as would enable those by whose authority they acted to reap the advantages antici- pated from its acquisition, and to gather there a population which would enable it to assume the position to which it was destined among the States of the Union. . . . But the power of Con- gress over the person or property of a citizen can never be a mere discretionary power under oiu* Constitution and form of Govern- ment. The powers of the Government and the rights and privi- leges of the citizen are regulated and plainly defined by the Con- stitution itself. . . . Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law. It seems, however, to be supposed, that there is a difference be- tween property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of ihe United States. And the laws and usages of nations, and the writ- ings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments naay exercise over it, have been dwelt upon in the argument. But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regu- lations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights SCOTT V. SANDPORD. 483 they have reserved. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction be- tween that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the pro- visions and guarantees which have been provided for the protec- tion of private property against the encroachments of the Govern- ment. Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words — too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights. Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding or owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the inten- tion of becoming a permanent resident . . . But there is another point in the ease which depends upon State power and State law. And it is contended, on the part of the plaintiff, that he is made free 'by being taken to Eock Island, in the State of Illinois, independently of his residence in the territory of the United States; and being so made free, he was not again re- duced to a state of slavery by being brought back to Missouri. Our notice of this part of the case will be very brief; for the principle on which it depends was decided in this court, upon much consideration, in the case of Strader et al. v. Graham, re- ported in 10th Howard, 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner. 484 CASES ON CONSTITtTTIONAL LAW. and afteiT^afds bi'otight back to Kentucky. And tMs court held that their status or condition, as frefe or slave, depended upon the laws of Kentucky, when they were brought back into that State, and net of Ohio; and that this court had no jurisdiction to revise the jud'ginent of a State court upon its own laws. . . . Sd in this caise. As Sicott was a slave when taken into the State of Illinois by his owuei-, and was there held as such, and brought back in that character, his status, as free or slavcj depended on the laws of Missouri, and not of Illinois. It has, however, been urged ib the argument, that by the laws of Missouri he was free on his return, and that this case, theref ofe> cannot be goverhied by the ease of Strader et al. v. Grahain, where it appeai'ed, by the laws of Kentucky, that the plaintiffs continued to be slaves on their retilrn from Ohio. But whatever doubts or opinions may, at one time, have been eiitertained upon this sub- ject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State, that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave, and not a citizen. . . . Upon tho wholcj therefore, it is the judgment of this court, that it appears by the record before us, that the plaintiff in error is not a citizen of Missouri, in the sense in Which that wOrd is used in the Oobstitution; and that the Circuit Court of the United ■States, fof that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued) directing the suit to be dismissed for want of jurisdiction. Me. JcsTiCE JTelson. ... In the view we have taken of the case, it will not be necessary to pass upon this question [as to whether the plea in abatement is before the court], and we shall therefiore proceed at once to an examination of the case upon its merits. The question upon the merits, in general terms, is, whether or not the removal of the plaintiff, who was a slave, with his master, from the State of Missouri to the State of Illinois, with a view to a temporary residence, and after such residence and re- turn to the slave State, such residence in the free State works an emancipation. SCOTT V. SANDFORB. 485 As appears from the agreed statement of facts, this qitestioB ha^ been before the highest court of the State of Missouri, an4 a judg- ment rendered that this residence in the free State ha$ no snch effect; but, oji the contrary, that his original coiidition continued unchanged. The court below, the Circuit Court of the United StateSi for Mis- souri, in which this suit was afterwards brought, followed the deei- eion of the State court, and rendered a like judgment against the plaintiff. The argument against these decisions is, that the l^iwss of Illi- nois, forbidding slavery within her territory, had the, e&ec% to set, the slave free while residing in that State, and to impress upon him the condition and status of a freeman; and that, by force of these laws, this status and condition accompanied him on his re- turn to the slave State, and of consequence he could not be there held as a slave. This question has been examined in the courts of seyeral, of the slave-holding States, and different opinions expressed and conclu- eions arrived at. . , . Our opinion is, ihat the question is one which belongs to each State to decide for itself, either by its Legis- lature or courts of justice; and hence, in respect to the ease before us, to the State of Missouri — a, question exclusively of Missouri law, and which, when determined 'by that State, it is the duty of the Federal courts to follow it. In other words, except in eases where the power is restrained by the Constitution of the United States, the law of the State is supreme over the subject of slavery within its jurisdiction. As a practical illustration of the principle, we may refer to the legislation of the free States in abolishing slavery, and prohibitr ing its introduction into their territories. Confessedly, except as restrained by the Federal Constitution, they exercised, and right- fully, complete and absolute power over the subject. Upon wha,| principle, then, can it be denied to the State of Miesoiui? The power flows froni the sovereign character of the States of thift Union; sovereign, not merely as respects the Federal Government -^^xcept as they have consented to its limitation— but sovereign aa^ respects each other. Whether, therefore, the State of Missouri will recognize or give effect to the laws of Illinois within her tfimtoriesi on the subject of slavery, is a question for her to determine. Nor is there any constitutional power in this Government that can rightfully control her. Every State or natiop possesses an exclusive sovereignty and 486 CASES ON CONSTITUTIONAL LAW, jurisdiction within her own territory; and her laws affect and bind all property and persons residing within it. It may regulate the manner and circumstances under which property is held, and the condition, capacity, and state of all persons therein; and, also, the remedy and modes of administering justice. And it is equally true, that no State or nation can ailect or bind property out of its territory, or persons not residing within it. No State, therefore, can enact laws to operate beyond its own dominions, and, if it at- tempts to do so, it may be lawfully refused obedience. Such laws can have no inherent authority extra-territorially. This is the nec- essary result of distinct and separate sovereignties. . . . These principles fully establish, that it belongs to the sovereign State of Missouri to determine by her laws the question of slavery within her jurisdiction, subject only to such limitations as may be found in the Federal Constitution; and, further, that the laws of other States of the Confederacy, whether enacted by their Legisla- tures or expounded by their courts, can have no operation within her territory, or affect rights growing out of her own laws on the subject. This is the necessary result of the independent and sov- ereign character of the State. The principle is not peculiar to the State of Missouri, but is equally applicable to each State belong- ing to the Confederacy. The laws of each have no extra-territorial operation within the jurisdiction of another, except such as may be voluntarily conceded by her laws or courts of justice. To the extent of such concession upon the rule of comity of nations, the foreign law may operate, as it then becomes a part of the municipal law of the. State. When determined that the foreign law shall have effect, the municipal law of the State retires, and gives place to the foreign law. ... It has been supposed, in the argument on the part of the plaintiff, that the eighth section of the act of Congress passed March 6, 1820 (3 St. at Large, p. 544), which prohibited slavery- north of thirty-six degrees thirty minutes, within which the plaintiil and his wife temporarily resided at Port Snelling, pos- sessed some superior virtue and effect, extra-territorially, and with- in the State of Missouri, beyond that of the laws of Illinois, or those of Ohio in the case of Strader et al. v. Graham. A similar ground was taken and urged upon the court in the case just men- tioned, under the ordinance of 1787, which was enacted during the time of the Confederation, and re-enacted by Congress after the adoption of the Constitution, with some amendments adapting it to the new Government. (1 St. at Large, p. 50). SCOTT V. SANDFORD. 487 In answer to this ground, the Chief Justice, in delivering the opinion of the court, observed: "The argument assumes that the six articles which that ordinance declaxes to be perpetual, are still in force in the States since formed within the territory, and ad- mitted into the Union. If this proposition could be maintained, it would not alter the question; for the regulations of Congress, under the old Confederation or the present Constitution, for the government of a particular Territory, could have no force beyond its limits. It certainly could not restrict the power of the States, within their respective territories, nor in any manner interfere with their laws and institutions, nor give this court control over them. "The ordinance in question," he observes, "if still in force, could have no more operation than the laws of Ohio in the State of Ken- tucky, and could not influence the decision upon the rights of the master or the slaves in that State." This view, thus authoritatively declared, furnishes a conclusive answer to the distinction attempted to be set up between the extra-' territorial effect of a State law and the act of Congress in question. It must be admitted that Congress possesses no power to regu- late or abolish slavery within the States; and that, if this act had attempted any such legislation, it would have been a nullity. And yet the argument here, if there be any force in it, leads to the result, that effect may be given to such legislation; for it is only by giving the act of Congress operation within the State of Mis- souri, that it can have any effect upon the question between the parties. Having no such effect directly, it will be difficult to maintain, upon any consistent reasoning, that it can be made to operate indirectly upon the subject. . . . It is perhaps not unfit to notice, in this connection, that many of the most eminent statesmen and jurists of the country enters tain the opinion that this provision of the act of Congress, even within the territory to which it relates, was not authorized bj any power under the Constitution. . . . Upon the whole, it must be admitted that the current of author- ity, both in England and in this country, is in accordance with the law as declared by the courts of Missouri in the case before us, and we think the court below was not only right, but bound to follow it. . . , Our conclusion is, that the judgment of the court below should be affirmed. [Justices Wayne and Daniel concurred entirely in the opinion 488 CASES ON CONSTITUTIONAL LAW. of the Chief Justice. Justice Grier concurred with Justice Nel- son "on the questions discussed by him." He did not mention the plea in abatement. Justice Campbell did not consider the plea in abatement, but concurred with the Chief Justice as to the other points involved. Justice Catron concurred with the Chief Justice as to the Missouri Compromise and with Justice Nelson as to the effect of residence in Illinois. He held that the plea in abatement was not before the court. Of the two dissenting justices, McLean denied and Curtis admitted that the plea in aibatement was open. Mh. Justice McLean amd Mb. Justice Cuktis dissented- JusTicE McLean held, 1. As to the locality of slavery, that it was a mere municipal regulation, founded upon and limited to the range of territorial laws. 2. Slavery is emphatically a State institution. In the formation of the Federal Constitution, care was taken to confer no power on the Federal Government to inter' fere with this institution in the States^ In the provision respest- ing the slave trade, in fixing the ratio of representation, and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered in the Constitution. 3. As to the power of Congress to establish Territorial Governments, and to prohibit the introduction of slav- ery therein. Congress has power to dispose of and make all needful rules and regulations respecting the territory and other property belonging to the United States. If Congress should deem slaves or free colored persons injurious to the population of a free Terri- tory, on any ground coiuiected with the public interest, they have the power to prohibit them from becoming settlers in it. 4. As to the effect of taking slaves into a State or Territory, and so hold- ing them, where slavery is prohibited, how can the slave be coerced to serve in ^ State or Territory, not only without the authority of law, but against its express provisions? Where no slavery exists, the presumption, without regard to color, is in favor of freedom. In 1834, in the case of Winny v. Whiteeides (1 Missouri Eep., 473), the Missouri Supreme Court held that if a slave be detained in Illi- nois until he be entitled to freedom, the right of the owner does not revive when he finds the negro in a slave State. 5. As to whether the status of slavery attached to the plaintiff and wife, on their return to Missouri, this doctrine is not asserted in the late opinion of the Supreme Court of Missouri, and up to 1852 the contrary doctrine was uniformly maintained by that court. SCOTT V. aA.NIlFORI>, 48? Justice Curtis held that the plea in ahatement was before the court. To determine whether any person of African descent whose RHcestors were sold as slaves in the United States can be a citizen of the United States, it may be inquired who were citizens of the United States at the time of the adoption of the Constitution. Citizens at that time can have been no other than the citizens of the United States under the Confederation. These included free persons descended from Africans held in slavery. At the time of the ratification of the Articles of Confederation, all free native- horn inhabitants of the States of' New Hampshire, Massachusetts, New York, New Jersey and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens. He con- cluded therefore, 1. That the free-bom citizens of each State are citizens of the United States. 2. That as free colored persons born within some of the States are citizens of those States, such persons are also citizens of the United States. 3. That every such citizen, residing in any State, has the right to sue and is liable to be sued in the Federal courts, as a citizen of that State in which he resides. 4. That as the plea to the jijrisdiction in this case shows no facts, except that the plaintiff was of African descent, and his ancestors were sold as sikves, and as these facts are not inconsistent with his citizenship of the United States, and his residence in the State of Missouri, the plea to the Jurisdiction was bad, ajad the judgment of the Circuit Court overruling it, was correct. As to the effect of Scott's residence in the Territory in which slavery was prohibited, the judge held that the laws of the United State? in operation there changed his status to that of a free man. Fur- thermore the consent of the master that his slave, residing in a country which does, not tolerate slavery, may enter into a lawful contract of marriage, attended with the civil rights and duties which belong to that condition, is an effectual act of emancipation. The Act of Congress of March 6, 1820, was a regulation respecting the territory of the United States, and was a constitutional and valid law.] Note. — The court consisted at this time of nine judges, seven of whom concurred in the judgment rendered. Of these seven, only three, viz., Taney, Wayne and Daniel, held that the plea in abatement was open, and hence that the question of the status of free negroes was before the court. Justice Catron held that the 490 CASES ON CONSTITUTIONAL LAW. plea was not open. Justices Nelson and Campbell took such views of the case that they did not pass upon it, and Justice Grier seemed to avoid the question. Six members of the court, viz., Taney, Wayne, Daniel, Grier, Campbell, and Gatron, concurred in pro- nouncing the Missouri Compromise unconstitutional. Justice Nelson did not pass upon it. It is important in this case to distinguish the opinion of the court from the judgment of the court. What is called in the re- port the opinion of the court is«in reality only the opinion of the Chief Justice, which he delivered before announcing the judg- ment of the court. The distinction appears clearly in the opinions of Justices Campbell and Catron, who concurred in the judgment of the Chief Justice, but expressly dissented from certain parts of his opinion. The opinion of Justice Nelson was the only one in which all the justices of the majority concurred. It was orig- inally prepared to stand as the opinion of the court. See Thayer's Cases, 1, 480, note. Scott's first case is reported in 15 Mo., 683. "Had the supreme court confined its action to a denial of juris- diction in this case on the ground taken by the Missouri state su- preme court, the decision would probably have been accepted generally as law, however harsh, in the case of slaves removed tem- porarily from state jurisdiction and then brought back. But, im- pelled, as has been charged, by a superserviceable desire to forward the interests and designs of slave-holders in the territories, or as is much more probable, by the wide sweep taken by counsel on both sides in their arguments, the chief justice and the assenting jus- tices proceeded to deliver a course of individual lectures on history, polities, ethics and international law, the exact connection of which with the legal subject matter in hand it was in many cases difficult for the justices themselves to make perfectly clear. In these addi- tions to the denial of jurisdiction lay the interest, importance and far-reaching consequences of the Dred Scott decision. . . . The Dred Scott decision was the last attempt to decide the con- test between slavery extension and slavery restriction by form of law." Alexander Johnston in Lalor's Cyclopedia, I, 839, 841. "It is noticeable that the sting of the decision lay rather in the obiter dicta than in the determination of the main question in- volved." Bryce, American Commonwealth (3d Ed.), I, 363, note. "While Chief Justice Tanet has always in the public estimation iborne the brunt of this decision, it is nevertheless to be considered that of the nine judges of the court six concurred with him in SLAUGHTER-HOUSE CASES. 491 holding that the plaintiff was a slave, and that the judgment of the court should be affirmed. Of these six (Catron, Daniel, Wayne, Campbell, Kelson, and Grier) two — ^not the two least strong — were respectively from the States of New York and Pennsylvania, and had both held important judicial positions in those Slates be- fore reaching the bench of the Federal Supreme Court. They must all share — and doubtless had none of them any desire to ■avoid it — ^the responsibility of this judgment of the court. The opinion in dissent of Justice Cfbtis, ... is profound in its examination of the sources of the law upon the subject; luminous and learned in its consideration of the political and judicial his- tory of the country; and convincing in the conclusions to which it arrives. Hardly too much can be said in praise of this masterly effort." George "W. Biddle in Constitutional History as seen in American Law, 180-181. SLAUGHTEE-HOUSE CASES. 16 Wallace, 36. Decided 1873. [The facts are sufficiently stated in the opinion of the court.] Mh. Justice Miller now, April 14, 1873, delivered the opinion of the court. These cases are brought here by writs of error to the Supreme Court of the State of Louisiana. They arise out of the efforts of the butchers of New Orleans to resist the Crescent City Live-Stock Landing and Slaughter-House Company in the exercise of certain powers conferred by the charter which created it, and which was granted by the legislature of that State. . . • The records show that the plaintiffs in error relied upon, and as- serted throughout the entire course of the litigation in the State courts, that the grant of privileges in the charter of defendant, which they were contesting, was a violation of the most important provisions of the thirteenth and fourteenth articles of amendment of the Constitution of the United States. The jurisdiction and the duty of this court to review the judgment of the State court on those questions is clear and imperative. The statute thus assailed as unconstitutional was passed March 8, 1869, and is entitled, "An act to protect the health of the city 4&2 CASES ON CONSTITUTIONAL. LAW. of New Orleans, to locate the stock-landings and slaughter-houses, and to incorporate the Crescent City LiveTStock Landing aad Slaughter-HoTise Company." The first section forbids the landing or slaughtering of animals whose flesh is intended for food, within the city of New Orleans and other parishes and boundaries named and defined, or the keep- ing or establishing any slaughter-houses or a/battoirs within those limits, except by the corporation thereby created, which is also lim- ited to certain places afterwards mentioned. Suitable penalties are enacted for violations of this prohibition. The second section designates the corporators, gives the name to the corporation, and confers on it the usual corporate powers. The third and fourth sections authorize the company to estab- lish an-d erect within certain territorial limits, therein defined, one or more stock-yards, stock-landings, and slaughter-houses, and im- pose upon it the duty of erecting, on or before the first day of June, 1869, one grand slaughter-house of sufficient capacity for slaughtering five hundred animals per day. It declares that the company, after it shall have prepared all the necessary buildings, yards, and other conveniences for that pur- pose, shall have the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business within the limits and privilege granted 'by the act, and that all such animals shall be landed at the stock-landings and slaughtered at the slaughter-houses of the company, and nowhere else. Penalties are enacted for infractions of this provision, and prices fixed for the maximum charges of the company for each steamboat and for each animal landed, Section five orders the closing up of all other stock-landings and slaughter-houses after the first day of June, in the parishes of Or- leans, Jefferson, and St. Bernard, and makes it the duty of the company to permit any person to slaughter animals in their slaughter-houses under a heavy pena,lty for each refusal. Another section fixes a limit to the charges to be made by the company for each animal so slaughtered in their building, and another provides for an inspection of all animals intended to be so slaughtered, by an officer appointed by the governor of the State for that pui-pose. These are the principal features of the statute, and are all that have any bearing upon the questions to be decided by us. This statute is denounced not only as creating a monopoly and Qonferring odious and exclusive privileges upon a small number of SLAUGHTER-HOUSE CASES. 493 perebiis a;t the expense of the great body of the community of New Orleans, but it is asserted that it deprives a large and meritor- ious class of citizens — ^the whole of the butchers of the city — of the right to exercise theiir trade, the business to which they have been trained and on which they depend for the support of themselves and their families; and that the unrestricted exei-cise of the busi- ness of butchering is Hecessaiy to the daily subsistence of the popu- lation of the bity. But a critical eiamination of the act hardly juBtifies these asser* tions. It is true that it grants, for a period of twenty-five years, exclu- sive privileges. And whether those privileges are at the expense of the community in the sense of a curtailment of any of theit fundamental rights, or even in the sense of doing them an injury, is a question opeii to coiisiderations to be hereafter stated. But it is hot true that it deprives the butehers of the right to exercise their trade, or imposes upon them any restriction incompatible with its successful pursuit, or furnishing the people of the city with the necessary daily supply of animal food. The act divides itself into two inaih glints of privilege, — ^thie one in reference to stock-kndingg and stoek-yaids, and the other to slaughter-houses. That the landing of live-stock in large droves, from steamboats on the bank of the river, and froin railroad trains, should, for the safety and comfort of the people and the care of the animals, be liinitied to proper places, and thosfe not numerou8) it needs no argument to prove. Nor can it be injurious to the general community that while the duty of making ample prepara- tion for this is imposed upon a few men, Or a corporation, they should, to enable them to do it BuecessfuUy, have the exclusive right of providing such landing-places, anfl receiving a fair com- pensation for the servicfe. It is, however, the slaughtef-house pfivilegfe, which is mainly relied on to justify the charges of gross injustice to the public, and invasion of private right. It is not, and Cannot be sUecessfiilly controverted, that it is both the right and the duty of the legislative body— the supreme power of the State or niuiiicipality-^^to prescribe and determine the localities where the business of slaughtering for a great city may be conducted. To do this effectively it is indispensable that all per- sons who slaughter animals for food shall do it in those places and nowhere else. The statute under consideration defines these localities and for- 494 CASES ON CONSTITUTIONAL LAW. bids slaughtering in any other. It does not, as has been asserted, prevent the butcher from doing his own slaughtering.' On the contrary, the Slaughter-House Company is required, under a heavy penalty, to permit any person who wishes to do so, to slaughter in their houses; and they are bound to make ample provision for the convenience of all the slaughtering for the entire city. The butcher then is still permitted to slaughter, to prepare, and to sell his own meats; but he is required to slaughter at a specified place and to pay a reasonable compensation for the use of the accommo- dations furnished him at that place. The wisdom of the monopoly granted by the legislature may be open to question, but it is difficult to see a justification for the assertion that the butchers are deprived of the right to labor in their occupation, or the people of their daily service in preparing food, or how this statute, with the duties and guards imposed upon the company, can be said to destroy the business of the butcher, or seriously interfere with its pursuit. 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 questioned in some of its details. "Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam-power to propel cars, the building with combustible materials, and the burial of the dead, may all," says Chancellor Kent,* "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 neighbors; 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 by Chief Justice Shaw," that it is much easier to perceive and realize the existence and sources of it than to mark 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 enjoyment of private and social life, and the beneficial use of property. "It ex- 1 2 Commentaries, 340. a Commonwealth v. Alger, 7 Cnshlng, 84. SLAUGHTER-HOUSE CASES. 495 tends," says another eminent judge,' "to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State; . . . and persons and prop- erty 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 m'anner of conducting the slaughtering of animals, and the business of butchering within a city, and the inspection of the animals to be killed for meat, and of the meat afterwards, 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. . . . [Here follows an extract from Gibbons v. Ogden, 9 Wheaton, 203]. The exclusive authority of State legislation over this subject is strikingly illustrated in the case of the City of New York v. Miln.* In that case the defendant was prosecuted for failing to comply with a statute of New York which required of every master of a vessel arriving from a foreign port, in that of New York City, to report the names of all his passengers, with certain particulars of their age, occupation, last place of settlement, and place of their birth. It was argued that this act was an invasion of the exclusive right of Congress to regulate commerce. And it cannot be de- nied, that such a statute operated at least indirectly upon the com- mercial intercourse between citizens of the United States and of foreign countries. But notwithstanding this it was held to be an exercise of the police power properly within the control of the State, and unafEected by the clause of the Constitution which con- ferred on Congress the right to regulate commerce. To the same purpose are the recent eases of The License Tax,' and United States v. DeWitt.' In the latter case an act of Con- gress which undertook as a part of the internal revenue laws to make it a misdemeanor to mix for sale naphtha and illuminating oils, or to sell oil of petroleum inilamnmble at less than a pre- scribed temperature, was held to be void, because as a police regu- lation the power to make such a law belonged to the States, and did not belong to Congress. s Thorpe v. Rutland and Burlington Railroad Co., 27 Vermont, 149 . 4 11 Peters, 102. 5 5 Wallace, 471. 6 9 Id., ih 496 CASES ON CONSTITUTIONAL LAW. It cannot be denied that the statute nnder consideratitin is aptly framed to remove from the more densely populated part of the city the noxious slaughtet-hbuses, and large and oSensiVe fcollee- tions of animals necisssafily incident to the slaughtering business of a large city, and to locate them where the couTetiience, health, and comfort of the people require they shall be located. And it must be conceded that the means adopted by the aCt for this pur- pose are appropriate, are stringent, and effectual. But it is said that in creating a corporation for this ptirpose, ahd cbnfetf iSg lipon it exclusive privileges — privileges which it is said constitute a mo- nopoly — the legislature has exceeded its powei:. If this statute had imposed on the city of New Orleans precisely the same duties, accompanied by the same privileges, which it has oh the Corpora- tion which it created, it is believed that no question would have been raised as to its constitutionality. In that case the effect on the butchers in pursuit of their occupation and on the public would have been the same as it is how. Why cannot the legislature con- fer the same powers on anbthier corporation, created for a lawful ahd useful public object, that it can on the municipal cotporation already existing? iTiat wherever a legislature hafe the right to accomplish a certain result, and that result is best attained by means of a corporation, it has the right to create such a corpora- tion, and to endow it with the powers necessary to effect the de- sired and lawful purpose, seenls hardly to admit of debate. The proposition is ably discussed and affirmed in the case of McCulloch V. The State of Maryland,' in relation to the power of Congress to organize the Bank of the United States to aid in the fisieal operar tions of the government. It can readily be seen that the interested vigilance of the corpo- ration created by the Louisiana legislature will be more efficient in enforcing the limitation prescribed for the stock-landing and slaughtering business for the good of the city than the Ordinary efforts of the officers of the law. Unless, therefore, it can be maintained that the exclusive privi- lege granted by this charter to the corporation is beyond the power ■of the legislature of Louisiana, there can be no just exception to the validity of the statute. And in this respect we are not able to see that these privileges are especially odious or objectionable. The duty imposed as a consideration for the privilege i8 well de- fined, and its enforcement well guarded. The prices or ehargea 7 4 Wheat., 316. SLAUGHTER-HOUSE CASES. 497 to be made by the company are limited by the statute, and we are not advised that they are on the whole exorbitant or unjust. The proposition is, therefore, reduced to these terms: Can any exclusive privileges be granted to any of its citizens, or to a corpo- ration, by the legislature of a State? The eminent and learned counsel who has twice argued the nega- tive of this question, has displayed a research into the history of monopolies in England and the European continent, only equalled by the eloquence with which they are denounced. But it is to be observed, that all such references are to monopo- lies established by the monarch in derogation of the rights of his subjects, or arise out of transactions in which the people were un- represented, and their interests uncared for. The great Case of Monopolies, reported by Coke, and so fully stated in the brief, was undoubtedly a contest of the commons against the monarch. The decision is based upon the ground that it was against com- mon law, and the argument was aimed at the unlawful assump- tion of power by the crown; for who ever doubted the authority of Parliament to change or modify the common law? The discussion in the House of Commons cited from Macaulay clearly establishes that the contest was between the Crovm, and the people represented in Parliament. But we think it may be safely affirmed, that the Parliament of Great Britain, representing the people in their legislative functions, and the legislative bodies of this country, have from time immem- orial to the present day continued to grant to persons and corpora- tions exclusive privileges, — ^privileges denied to other citizens, — privileges which come within any just definition of the word mo- nopoly, as much as those now under consideration; and that the power to do this has never been questioned or denied. Nor can it be truthfully denied, that some of the most useful and bene- ficial enterprises set on foot for the general good, have been made successful by means of these exclusive rights, and could only have been conducted to success in that way. It may, therefore, be considered as established, that the authority of the legislature of Louisiana to pass the present statute is ample, unless some restraint in the exercise of that power be found in the constitution of that State or in the amendments to the Constitution of the United States, adopted since the date of the decisions we have already cited. If any such restraint is supposed to exist in the constitution of the -State, the Supreme Court of Louisiana having necessarily 32 498 CASES ON CONSTITUTIONAL LAW. passeid on that question, it would not be open to review in this court. The plaintiffs in error accepting this issue, allege that the statute is a violation of the Constitution of the United States in these sev- eral particulars: — That it creates an involuntary servitude forbidden by the thir- teenth article of amendment; That it abridges the privileges and immunities of citizens of the United States; That it denies to the plaintiffs the equal protection of the laws; and, That it deprives them of their property without due process of law; contrary to the provisions of the first section of the fourteenth article of amendment. This court is thus called upon for the first time to give construc- tion to these articles. We do not conceal from ourselves the great responsibility which this duty devolves upon us. No questions so far-reaching and per- vading in their consequences, so profoundly interesting to the peo- ple of this country, and so important in their bearing upon the rela- tions of the United States, and of the several States to each other and to the citizens of the States and of the United States, have been before this court during the official life of any of its present members. We have given every opportunity for a full hearing at the bar; we have discussed it freely and fcompared views among our- selves; we have taken ample time for careful deliberation, and we now propose to announce the judgments which we have formed iit the construction of those articles, so far as we have found them necessary to the decision of the cases before us, and beyond that we have neither the inclination nor the right to gd. Twelve articles of amendment were added to the Federal Consti- tution soon after the original organization of the government under it in 1789. Of these all but the last were adopted so soon after- wards as to justify the statement that they were practically con- temporaneous with the adoption of the original; and the twelfth, adopted in eighteen hundred and three, was so nearly so as to have become, like all the others, historical and of another age. But within the last eight years three other articles of amendinent of vast importance have been added by the voice of the people to that now venerable instrument. The most cursory glance at these articles discloses a unity of SLAUGHTER-HOUSE CASES. 499 purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a refer- ence to that history; for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights; additional powers to the Federal government; additional restraints upon those of the States. Fortunately that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt. The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the efEort, on the part of most of the States in which slavery existed, to separate from the Federal government, and to resist its authority. This con- stituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery. In that struggle slavery, as a legahzed social relation, perished. It perished as a necessity of the bitterness and force of the con- flict. When the armies of freedom found themselves upon the soil of slavery they could do nothing less than free the poor victims whose enforced servitude was the foundation of the quarrel. And when hard pressed in the contest these men (for they proved them- selves men in that terrible crisis) offered their services and were accepted by thousands to aid in suppressing the unlawful rebellion, slavery was at an end wherever the Federal government succeeded in that purpose. The proclamation of President Lincoln expressed an accomplished fact as to a large portion of the insurrectionary districts, when he declared slavery abolished in them all. But the war being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive, both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the re- stored Union as one of its fundamental articles. Hence the thir- teenth article of amendment of that instrument. Its two shori; 500 CASES ON CONSTITUTIONAL LAW. sectiona seem hardly to admit of construction, so -vigorous is their expression and so appropriate to the purpose we have indicated. "1. Neither slavery nor involuntary servitude, except as a pun- ishment for crime, whereof the party shall have been duly con- victed, shall exist within the United States or any place subject to their jurisdiction. "2. Congress shall have power to enforce this article by appro- priate legislation." To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government — a declaration de- signed to establish the freedom of four million of slaves — and with a microscopic search endeavor to find in it a reference to servitudes, which may have been attached to property in certain localities, re- quires an effort, to say the least of it. That a personal servitude was meant is proved by the use of the word "involuntary," which can only apply to human beings. The exception of servitude as a punishment for crime gives an idea of the class of servitude that is meant. The word "servitude" is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that in the form of appreticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word "slavery" had been used. The case of the apprentice slave, held under a law of Maryland, liber- ated by Chief Justice Chase, on a writ of habeas corpus under this article, illustrates this course of observation.^ And it is all that we deem necessary to say on the application of that article to the statute of Louisiana, now under consideration. The process of restoring to their proper relations with the Fed- eral government and with the other States those which had sided with the rebellion, undertaken under the proclamation of President Johnson in 1865, and before the assembling of Congress, devel- oped the fact that, notwithstanding the formal recognition by those States of the abolition of slavery, the condition of the slave race would, without further protection of the Federal government, be almost as bad as it was before. Among the first acts of legislation adopted by several of the States in the legislative bodies wliic^ 1 Matter of Turner, 1 Abbott United States Reports, 84. SLAUGHTER-HOUSE CASES. 501 claimed to be in their normal relations with the Federal govern- ment, were laws which imposed upon the colored race onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom. was of little value, while they had lost the protection which they had received from their former owners from motives both of inter- est and humanity. They were in some States forbidden to appear in the towns in any other character than menial servants. They were required to re- side on and cultivate the soil without the right to purchase or own it. They were excluded from many occupations of gain, and were not permitted to give testimony ia the courts in any ca.se where a white man was a party. It was said that their lives were at the mercy of bad men, either because the laws for their pro- tection were insufficient or were not enforced. These circumstances, whatever of falsehood or misconception may have been mingled with their presentatiouj forced upon the statesmen who had conducted the Federal government in safety through the crisis of the rebellion, and who supposed that by the thirteenth article of amendment they had secured the result of their labors, the conviction that something more was necessary in the way of constitutional protection to the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until they ratified that article by a formal vote of their legislative bodies. Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us com- plete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years' experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inade- quate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered, by the white man alone. It was urged that a race of men dis- tinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage. 503 CASES ON CONSTITUTIONAL LAW. Hence the fifteenth amendment, which declares that "the right of a citizen of the United States to vote shall not he denied or abridged by any State on account of race, color, or previous condi- tion of servitude." The negro having, by the fourteenth amend- ment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union. We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one perr vading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm estab- lishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had for- merly exercised unlimited dominion over him.It is true that only the fifteenth amendment, in terms, mentions the negro by speak- ing of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth. We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese cooly labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party inter- ested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just con- struction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the per- vading spirit of them all, the evil which they were designed to remedy, and the process, of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it. The first section of the fourteenth article, to which our atten- tion is more specially invited, opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the SLAUGHTER-HOUSE CASES. 503 States. No such definition was previously found in the Constitu- tion, nor had any attempt been made to define it by act of Congress. It had been the occasion of much discussion in the courts, by the executiye departments, and in the pubhc journals. It had been eaid by eminent judges that no man was a citizen of the United States except as he was a citizen of one of the States composing the Union. Those, therefore, who had been born and resided always in the District of Columbia or in the Territories, though within the United States, were not citizens. Whether this proposition was sound or not had never been judicially decided. But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled; and if it was to be accepted as a constitutional limitation of the right of citizenship, then all the negro race who had recently been made freemen, were still, not only not citizens, but were incapable of becoming so by anything short of an amend- ment to the Constitution. To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizen- ship of a State, the first clause of the first section was framed. "All persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The first observation we have to make on this clause is, that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States bom within the United States. The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is elearlj 504 CASES ON CONSTITUTIONAL LAW. recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an im- portant element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be bom or naturalized in the United States to be a citizen of the Union. It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a State, which are distinct from each other, and which depend upon different characteristics or circum- stances in the individual. We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same. The language is, "Ko State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose. Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitu- tion, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amend- ment. If, then, there is a difference between the privileges and immuni- ties belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such, the latter must rest for their security and protection where they have heretofore rested,; for they are not embraced by this paragraph of the amendment. The first occurrence of the words "privileges and immunities" SLAUGHTER-HOUSE CASES. 505 in our constitlltional history, is to be found in the fourth of the articles of the old Confederation. It declares "that the better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the 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, im- positions, and restrictions as the inhabitants thereof respectively." In the Constitution of the United States, which superseded the Articles of Confederation, the corresponding provision is found in section two of the fourth article, in the following words: "The citizens of each State shall be entitled to ail the privileges and im- munities of citizens of the several States." There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities in- tended are the same in each. In the article of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general idea of the class of civil rights meant by the phrase. Fortunately we are not without judicial construction of this clause of the Constitution. The first and the leading case on the subject is that of Corfield v. Coryell, decided by Mr. Justice Wash- ington in the Circuit Court for the District of Pennsylvania in 1823.^ "The inquiry," he says, "is, what are the privileges and immuni- ties of citizens of the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are fundamental; which belong of right to the citizens of all free governments, and which have at all times been enjoyed by 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 be more tedious than difiicult to enumerate. They may all, however, be comprehended under the following general heads: protection by the government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the gen- eral good of the whole." [The court then cites Ward v. The State 1 4 Washington's Circuit Court, 371. 506 CASES ON CONSTITUTIONAL LAW. of Maryland, 12 Wallace, 430, and Paul v. Virginia, 8 Wallace, 180]. The constitutional provision there alluded to did not create those rights, which it called privileges and immunities of citizens 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 what- ever those rights, as you grant or establish them to your own citi- zens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction. It would be the vainest show of learning to attempt to prove by citation of authority, that up to the adoption of the recent amend- ments, no claim or pretense was set up that those rights depended on the Federal government for their existence or protection, beyond the very few express limitations which the Federal Constitution imposed upon the States — such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government. Was it the purpose of the four- teenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is de- clared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such sub- jects. And still further, such a construction followed by the SLAUGHTER-HOUSE CASES. 507 reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the etruetuxe and spirit of our institutions; when the efEect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a pur- pose too clearly to admit of doubt. We are convinced that no such results were intended by the Con- gress which proposed these amendments, nor by the legislatures of the States which ratified them. Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no State can abridge, until some case involving those privileges may make it necessary to do so. But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which owe their existence to the Federal government, its Xational character, its Constitution, or its laws. One of these is well described in the ease of Crandall v. Nevada.^ It is said to be the right of the citizen of this great country, pro- tected by implied guarantees of its Constitution, "to come to the seat of government to assert any claim he may have upon that gov- ernment, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its-seaports, through 1 6 Wall., 36. 508 CASES ON CONSTITUTIONAL LAW. ■whieli all operations of foreign commerce are conducted, to the sut-treasuries, land offices, and courts of justices in the several States." And quoting from the language of Chief Justice Taney in another case, it is said "that for all the great purposes for which the Federal government was estahlished, we are one people, with one common country, we are all citizens of the United States;" and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada. Another privilege of a citizen of the United States is to demand the care and protection of the Federal government over his life, liberty, and property when on the high seas or within the juris- diction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peaceably assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizen guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, how- ever they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizen- ship of a State. One of these privileges is conferred by the very article under consideration. It is that a citizen of the United States can, of his own voUtion, become a citizen of ^.ny State of the Union by a bona fide residence therein, with the same rights as other citizens of that State. To these may be added the rights secured by the thirteenth and fifteenth articles of amendment, and by the other clause of the fourteenth, next to be considered. But it is useless to pursue this branch of the inquiry, since we are of opinion that the rights claimed by these plaintiffs in error, if they have any existence, are not privileges and immunities of citizens of the United States within the meaning of the clause of the fourteenth amendment under consideration. "All persons bom or naturalized in the United States, and sub- ject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of its laws." The argument has not been much pressed in these cases that the defendant's charter deprives the plaintiffs of their property without due process of law, or that it denies to them the equal SLAUGHTER-HOUSE CASES. 509 protection of the law. The first of these paragraphs has been in the Constitution since the adoption of the fifth amendment, as a restraint upon the Federal power. It is also to he found in some form of expression in the constitutions of nearly all the States, as a restraint upon the power of the States. This law, then, has prac- tically been the same as it now is during the existence of the goveriiTOent, except so far as the present. amendment may place the restraining power over the States in this matter in the hands of the Federal government. We are not without judicial interpretation, therefore, both State and National, of the meaning of this clause. And it is sufficient to say that under no construction of that provision that we have ever seen, or any that we deem admissible, can the restraint imposed by the State of Louisiana upon the exercise of their trade by the butchers of New Orleans be held to be a deprivation of property within the meaning of that provision. "Nor shall any State deny to any person within its jurisdiction the equal protection of the laws." In the light of the history of these amendments, and the per- vading purpose of them, which we have already discussed, it is not difiicult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the States did not conform their laws to its require- ments, then by the fifth section of the article of amendment Con- gress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emer- gency, that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave that matter until Congress shall have exercised its power, or some case of State op- pression, by denial of equal justice in its courts, shall have claimed a decision at our hands. We find no such case in the one before us, and do not deem it necessary to go over the argument again, as it may have relation to this particular clause of the amendment. In the early history of the organization of the government, its statesmen seem to have divided on the line which should separate 510 CASES ON CONSTITUTIONAL LAW. the powers of the National government from those of the State governments, and though this line has never been very well defined in public opinion, such a division has continued from that day to this. The adoption of the first eleven amendments to the Constitution so soon after the original instrument was accepted, shows a prevail- ing sense of danger at that time from the Federal power. And it cannot be denied that such a jealousy continued to exist with many patriotic men until the breaking omt of the late civil war. It waa then discovered that the true danger to the perpetuity of the TJnion was in the capacity of the State organizations to comibine and con- centrate all the powers of the State, and of contiguous States, for a determined resistance to the General Government. Unquestionably this has given great force to the argument, and added largely to the number, of those who believe in the necessity of a strong National government. But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been con- sidering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States with powers for domestic and local government, including the regulation of civil rights — the rights of person and of property — ^was essential to the perfect working of our complex form of government, though they may have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation. But whatever fluctuations may be seen in the history of public opinion on this subject during the period of our national existence, we think it will be found that this court, so far as its functions required, has always held with a steady and even hand the balance between State and Federal power, and we trust that such may con- tinue to be the history of its relation to that subject so long as it shall have duties to perform which demand of it a construction of the Constitution, or any of its parts. The judgments of the Supreme Court of Louisiana in these cases are affirmed. [Chief Justice Chase and Justices Field, Swayne, and Bhadlet dissented. The last three delivered opinions.] Note. — ^In 1887' Mr. Justice Miller made the following statement in the nature of a defense of his opinion in this case: STRAUDER v. WEST VIRGINIA. 511 "Although this opinion did not meet the approval of four out of nine of the Judges on some of the points on which it rested, yet public sentiment, as found in the press and in the universal acquiescence which it received, accepted it with great unanimity; and although there were intimations that in the legislative branches of the Government the opinion would be reviewed and criticised imfavorably, no such thing has occurred in the fifteen years which have elapsed since it was delivered. And while the question of the construction of these amendments, and particularly the Fourteenth, has often been before the Supreme Court of the United States, no attempt to override or disregard this elementary decision of the effect of the three hew constitutional amendments upon the rela- tions of the State governments to the Federal government has been made; and it may be considered now as settled that, with the exception of the specific provisions in them for the protection of the personal rights of the citizens and people of the United States, and the necessary restrictions upon the power of the States for that purpose, with the additions to the powers of the General Govern- ment to enforce these provisions, no substantial change has been made. The necessity of the great powers, conceded by the Consti- tution originally to the Federal Government, and the equal necessity of the autonomy of the States and their power to regulate their domestic affairs, remain as the great features of our complex form of government;" Miller, Lectures on the Constitution of the United States, 411. STEAUDEE t. WEST ViEGINIA. 100 U. S.. 303. Decided 1879. Eerob to the Supreme Court of Appeals of the State of West Virginia. The facts are stated in the opinion of the court. . . . Mr. Justice STBOtrS delivered the opinion of the court. The plaintiff in error, a colored man, was indicted for murder in the Circuit Court of Ohio County, in West Virginia, on the 20th of October, 1874, and upon trial was convicted and sentenced. The record was then removed to the Supreme Court of the State, and there the judgment of the Circuit Court was affirmed. The present case is a writ of error to that court, and it is now, in sub- 513 CASES ON CONSTITUTIONAL LAW. stance^ aTerred that at the trial in the State court the defendant (now plaintiff in error) was denied rights to which he was entitled under the Constitution and laws of the United States. In the Circuit Court of the State, before the trial of the indict- ment was commenced, the defendant presented his petition, verified hy his oath, praying for a removal of the cause into the Circuit Court of the United States, assigning, as ground for the removal, that, "by virtue of the laws, of the State of West Virginia no colored man was eligible to be a member of the grand jury or to serve on a petit jury in the State; that white men are so eligible, and that by reason of his being a colored man and having been a slave, he had reason to believe, and did believe, he could not have the full and equal benefit of all laws and proceedings in the State of West Virginia for the security of his person as is enjoyed by white citizens, and that he had less chance of enforcing in the courts of the State his rights on the prosecution, as a citizen of the United States, and that the probabilities of a denial of them to. him as such citizen on every trial which might take place on the indictment in the courts of the State were much more enhanced than if he was a white man." This petition was denied by the State court, and the cause was forced to trial. Motions to quash the venire, "because the law under which it was issued was unconstitutional, null, and void," and successive motions to challenge the array of the panel, for a new trial, and in arrest of judgment were then made, all of which were overruled and made by exceptions parts of the record. The law of the State to which reference was made in the petition for removal and in the several motions was enacted on the 12th of March, 1873 (Acts of 1872-73, p. 102), and it is as follows: "All white male persons who are twenty-one years of age and who are citizens of this State shall be liable to serve as jurors, except as herein provided." The persons excepted are State officials. In this court, several errors have been assigned, and the con- trolling questions underlying them all are, first, whether, by the Constitution and laws of the United States, every citizen of the United States has a right to a trial of an indictment against him by a jury selected and impanelled without discrimination against his race or color, because of race or color; and, second, if he has such a right, and is denied its enjoyment by the State in which he is indicted, may he cause the case to be removed into the Circuit Court of the United States? It is to be observed that the first of these questions is not whether STRAUDER v. WEST VIRGINIA. 513 a colored man, when an indictment has been preferred against him, has a right to a grand or a petit jury composed in whole or in part of persons of his own race or color, but it is whether, in the com- position or selection of jurors by whom he is to be indicted or tried, all persons of his race or color may be excluded by law, solely because of their race or color, so that by no possibility can any colored man sit upon the jury. . . . This [the Fourteenth Amendment] is one of a series of constitu- tional provisions having a common purpose; namely, securing to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy. The true spirit and meaning of the amendments, as we said in the Slaughter-House Cases (16 Wall., 36), cannot be under- stood without keeping in view the history of the times when they were adopted, and the general objects they plainly sought to accom- plish. At the time when they were incorporated into the Consti- tution, it required little knowledge of human nature to anticipate that those who had long been regarded as an inferior and subject race would, when suddenly raised to the rank of citizenship, be looked .upon with jealousy and positive dislike, and that State laws might be enacted or enforced to perpetuate the distinctions that had before existed. Discriminations against them had been habit- ual. It was well known that in some States laws making such discriminations then existed, and others might well be expected. The colored race, as a race, was abject and ignorant, and in that condition was unfitted to command the respect of those who had superior intelligence. Their training had left them mere children, and as such they needed the protection which a wise government extends to those who are unable to protect themselves. They especially needed protection against unfriendly action in the States where they were resident. It was in view of these considerations the Fourteenth Amendment was framed and adopted. It was designed to assure to the colored race the enjoyment of all the civil rights that under the laiw are enjoyed by white persons, and to give to that race the protection of the general government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to en- force its provisions by appropriate legislation. . . . [Here follow citations from the Slaughter-House Cases, 16 Wallace, 36]. If this is the spirit and meaning of the amendment, whether it 33 514 CASES ON CONSTITUTIONAL, LAW. means more or not, it is to Ibe construed literally, to carry out the purposes of its framers. It ordains that no State shall make or enforce any laws which shall abridge the pri-vileges or immunitieB of citizens of the United States (evidently referring to the newly made citizens, who, being citizens of the United States, are declared to he also citizens of the State in which they reside). It ordains that no State shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its juris- diction the equal protection of the laws. What is this but declar- ing that the law in the States shall be the same for ihe black as for the white; that all persons, whether colored or white, shall stand equal before the laws -of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because- of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary imphcation of a positive immunity, or right, most valuable to the colored race, — the right to exemption from unfriendly legislation against them distinctively as colored, — exemption frona legal diserimindions, implying inferiority in civil society, lessening the security of 'their enjoyment of the rights which others enjoy, and discriminations which are steps towards reducing them'to the condition of a subject race. That the West Virginia statute respecting juries— ^;he statute that controlled the selection of the grand and;pfitit jury in the-case of the plaintiff in error — ^issuch a discrimination ought not to be doubted. Nor would it be if the persons excluded by it were white men. If in those States where the colored ;people constitute a majority of the entire ipopulation a law should be enacted excluding all white men from jury service, thus denying to them the privilege of participating equally with the blacks in the administration of justice, we apprehend no one would be heard to claim that it would not be a denial to white men of the equal -protection of the laws. ISTor if a law should be passed excluding all naturahzed Celtic Irishmen, would there be any doubt of its inconsistency with the spirit of the amendment. The vory fact that colored people are singled out and expressly deniedby a statute all right to participate in the administration of the law, as jurors, because of their color, though they are citizens, and may be in other respects fully quali- fied, is practically a brand upon them, aiBxed by the law, an asser- tion of their inferiority, and a stimulant to that race prejudice STRAUDBR w. WEST VIRGINIA. 515 ■which is an impediment to securing to individuals of the race tha^ equal justice which the law aims to secure to all others. The right to a trial by jury is guaranteed to every citizen of West Virginia by the Gonstitution of that State, and the constitu- tion of juries is a very essential part of the protection such a mode of trial is intended to secure. The very idea of a jury is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine; that is, of his neighbors, fellows, associates, persons having the same legal status in society as that which he holds. Blackstone, in his Commentaries, says, "The right of trial by jury, or the country, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the Great Charter." It is also guarded by statutory enactments intended to make impossible what Mr. Ben- tham called "packing juries." It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that pro- tection which others enjoy. Prejudice in a local community is held to be a reason for a change of venue. The framers of the con- stitutional amendment must have known full well the existence of such prejudice and its likelihood to continue against the manu- mitted slaves and their race, and that knowledge was doubtless a motive that led to the amendment. By their manumission and citizenship the colored race became entitled to the equal protection qf the laws of the States in which they resided;. and the apprehen- sion that through prejudice they might be denied that equal pro- tection, that is, that there might be discrimination against them, was the inducement to bestow upon the national government the power to enforce the provision that no State shall deny to them the equal protection of the laws. Without the apprehended exist- ence of prejudice that portion of the amendment would have been unnecessary, and it might have been left to the States to extend equality of protection. In view of these considerations, it is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offence against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is 516 CASES ON CONSTITUTIONAL LAW. not protection of life and liberty against race or color prejudice a right, a legal right, under the constitutional amendmentj' And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection? We do not say that within the limits from which it is not ex- cluded by the amendment, a State may not prescribe the qualifi- cations of its jurors, and in so doing make discriminations. It may jconfine the selection to males, to freeholders, to citizens, to per- sons within certain ages, or to persons having educational qualifi- cations. We do not believe the Fourteenth Amendment was ever intended to prohibit this. Looking at its history, it is clear it had no such purpose. Its aim was against discrimination because of race or color. As we have said more than once, its design was to protect an emancipated race, and to strike down all possible legal discriminations against those who belong to it. To quote further from 16 Wall., supra^ "In giving construction to any of these articles [amendments], it is necessary to keep the main purpose steadily in view." "It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other." We are now called upon to affirm or deny that it had other purposes. The Fourteenth Amendment makes no attempt to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immuni- ties, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution. Concluding, therefore, that the statute of West Virginia, dis- criminating in the selection of jurors, as it does, against negroes because of their color, amounts to a denial of the equal protection of the laws to a colored man when he is put upon trial for an alleged offense against the State, it remains only to be con- sidered whether the power of Congress to enforce the provisions of the Fourteenth Amendment by appropriate legislation is sufficient to justify the enactment of sect. 641 of the Revised Statutes. A right or an immunity, whether created by the Constitution or only guaranteed by it, even without any express delegation of STRAUDER v. WEST VIRGINIA. 517 power, may be protected by Congress. Prigg v. The Common- wealth of Pennsylvania, 16 Pet., 539. So in United States v. Eeese (92 U. S., 214) it was said by the Chief Justice of this court: "Eights and immunities created by or dependent upon the Consti- tution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected." But there is express authority to protect the rights and immunities referred to in the Fourteenth Amendment, and to enforce observance of them by appropriate congressional legislation. And one very efficient and appropriate mode of extend- ing such protection and securing to a party the enjoyment of the right or immunity, is a law providing for the removal of his case from a State court, in which the right is denied by the State law, into a Federal court, where it will be upheld. This is an ordinary mode of protecting rights and immunities conferred by the Federal Constitution and laws. Sec. 641 is such a provision. . . . This act puts in the form of a statute what had been substantially ordained by the constitutional amendftient. It was a step toward enforcing the constitutional provisions. Sec, 641 was an advanced step, fully warranted, we think, by thfe fifth section of the Fourteenth Amendment. We have heretofore considered and affirmed the constitutional power of Congress to authorize the removal from State courts into the circuit courts of the United States, before trial, of criminal prosecutions for alleged offenses against the laws of the State, when the defense presents a Federal question, or when a right under the Federal Constitution or laws is involved. Tennessee v. Davis, supra, p. 357. It is unnecessary now to repeat what we there said. That the petition of the plaintiff in error, filed by him in the State court before the trial of his case, made a case for removal into the Federal Circuit Court, under sect. 641, is very plain, if, by the constitutional amendment and sect. 1977 of the Eevised Statutes, he was entitled to immunity from discrimination against him in the selection of jurors, because of their color, as we have endeavored to show that he was. It set forth sufficient facts to ex- hibit a denial of that immunity, and a denial by the statute law of the State. There was error, therefore, in proceeding to the trial of the in- dictment against him after his petition was filed, as also in over- 518 CASES ON CONSTITUTIONAL LAW. ruling his challenge to the array of the jniy, and in refusing to quash the panel. The judgment of the Supreme Court of West Virginia will be reversed, and the case remitted with instructions to reverse the judgment of the Circuit Court of Ohio Countyj and it is So ordered [Justice Field and Justice Cmffobd dissented.} CIVIL EIGHTS CASES. UNITED STATES v. STANLEY. tJNlTEI) STATES r, EYAN. UNITED STATES v. NICHOLS. UNITED STATES T. SINGLETON. EOBINSON and WIFE T. MEMPHIS AND CHAELESTON EAILEOAD COMPANY. 109 U. S., 3. Decided 1883. These cases are all founded on the first and second sections of the Act of Congress, known as the Civil Eights Act, passed March 1st, 1875, entitled "An Act to protect all citizens in their civil and legal rights." 18 Stat., 335. Two of the cases, those against Stanley and Nichols, were indictments for denying to persons of color the accommodations and privileges of an inn or hotel; two of them, those against Eyan and Singleton, were, one an informa- tion, the other an indictment, for denying to individuals the privi- leges and aecommodationa of a theater, the information against Eyan heing for refusing a colored person a' seat in the dress circle of Maguire's theatre in San Francisco; and the indictment against Singleton was for denying to another person, whose color was not stated, the full enjoyment of the accommodations of the theatre known as the Grand Opera House in New York, "said denial not being made for any reasons by law applicable to citizens of every race and color, and regardless of any previous condition of servi- tude." The ease of Eobinson and wife against the Memphis & Charleston E. E. Company was an action brought in the Circuit Court of the United States for the Western District of Tennessee, to recover the penalty of five hundred dollars given by the second section of the act; and the gravamen was the refusal by the con- ductor of the railroad company to allow the wife to ride in the ladies' car for the reason as stated in one of the counts, that she was a person of African descent. The Jury rendered a verdict for GlVIi RIGHTS CASES. 519 file defendants in ttis case, upon tte merits, under a charge of the court to which a bill of exceptions was taken by the plaintiffs. The case was tried on the assumption by both parties of the validity of the act of Congress; and the principal point made by the ex- ceptions was, that the judge allowed evidence to go to the jury tending to show that the conductor had reason to suspect that the plaintiff, the wife* was an improper person, because she was in company with a young man whom he supposed to be a white man, and on that account inferred that there was some improper con- nection between them; and the judge charged the jury, in sub- stance, that if this was the conductor's bona fide reason for exclud- ing the woman from the car they might take it into consideration on the question of the liability of the company. The case was fciGught here by writ of error at the suit, of the plaintiffs. The cases of Stanley, Nichols,, and Singleton, came up on certificates, of division of opinion between the judges below as to the consti- tutionality of the first and second sections of the act referred to; and the case of Eyan, on a writ of error to the judgment of the Circuit Court for the District of California sustaining a demurrer to the information. The Stanley, Eyan, M«hol8, and Singleton eases were sub- mitted together, by the Solicitor-General at the last term of court, on the 7th day of November, 1882. There were no appearances and no briefs filed for the defendants. The Eobinson case was submitted on the briefs at the last term, on the 29th day of March, 1883. . . . Mr. Justice Bkadley delivered the opinion of the court. After stating the facts in the above language he continued: It is obvious that the primary and important question in all the cases is the constitutionality of the law: for if the law is unconsti- tutional none of the prosecutions can stand. The sections of the law referred to provide as follows: "Sec. 1. That all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the ac- commodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations estab- lished by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude. "Sec. 2. That any person who shall violate the foregoing section by denying to any citizen, except for reasons by law applicable to citizens of every race and color, and regardless of any previous 520 CASES ON CONSTITUTIONAL LAW. condition of servitude, the full enjoyment of any of the accom- modations, advantages, facilities, or privileges in said section enum- erated, or by aiding or inciting such denial, shall for every such offense forfeit and pay the sum of five hundred dollars to the per- son aggrieved thereby, to be recovered in an action of debt, with full costs; and shall also, for every such offense, be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than one thousand dollars, or shall be imprisoned not less than thirty days nor more than one year: Provided, That all persons may elect to sue for the penalty afore- said, or to proceed under their rights at common law and by State statutes; and having so elected to proceed in the one mode or the other, their right to proceed in the other jurisdiction shall be barred. But this provision shall not apply to criminal proceedings, either under this Act or the criminal law of any State: And pro- vided further, That a judgment for the penalty in favor of the party aggrieved, or a judgment upon an indictment, shall be a bar to either prosecution respectively." Are these sections constitutional? The first section, which is the principal one, cannot be fairly understood without attending to the last clause, which qualifies the preceding part. The essence of the law is, not to declare broadly that all per- sons shall be entitled to the full and equal enjoyment of the ac- commodations, advantages, facilities, and privileges of inns, public conveyances, and theatres; but that such enjoyment shall not be subject to any conditions applicable only to citizens of a particular race or color, or who had been in a previous condition of servitude. In other words, it is the purpose of the law to declare that, in the enjoyment of the accommodations and privileges of inns, public conveyances, theatres, and other places of public amusement, no distinction shall be made between citizens of different race or color, or between those who have, and those who have not, been slaves. Its effect is to declare, that in all inns, public conveyances, and places of amusement, colored citizens, whether formerly slaves or not, and citizens of other races, shall have the same accommoda- tions and privileges in all inns, public conveyances, and places of amusement as are enjoyed by white citizens; and vice verea. The second section makes it a penal offense in any person to deny to any citizen of any race or color, regardless of previous servitude, any of the accommodations or privileges mentioned in the first section. Has Congress constitutional power to make such a law? Of course, no one will contend that the power to pass it was contained in the Constitution before the adoption of the last three amend- CIVIL RIGHTS CASES. 521 1116111:8. The power is sought, first, in the Fourteenth Amendment, and the views and arguments of distinguished Senators, advanced whilst the law was under consideration, claiming authority to pass it by virtue of that amendment, are the principal arguments ad- duced in favor of the power. We have carefully considered those arguments, as was due to the eminent ability of those who put them forward, and have felt, in all its force, the weight of authority which always invests a law that Congress deems itself competent to pass. But the responsibility of an independent judgment is now thrown upon this court; and we are bound to exercise it ac- cording to the best lights we have. 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 character, and prohibitory upon the States. It declares that: "Ko State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property with- out due process of law; nor deny to any person within its jurisdic- tion the equal protection of the laws." It is State action 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 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 brutum fulmen, the last section of the amendment invests Congress with power to enforce it by appropriate legislation. To enforce what? To enforce the prohibition. To adopt appropriate legislation for correcting the effects of such prohibited State laws and State acts, and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this is the whole of it. It does not invest Congress with power to legislate upon subjects 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 judicial, when these are subvensive of the fundamental rights specified in the amend- 523 CASES ON CONSTITUTIONAL LAW, ment. Positive rights and privileges are undoubtedly secured by the Fourteenth. Amendment; but they are secured by way of pro- hibition against State laws and State proceedings afiecting those rights and privileges, and by power given to CongreBS to legislate for the purpose of carrying such prohibition into effect: and such legislation must necessarily be predicated upon such supposed State laws or State proceedings, and be directed to the correction of their operation and effect. A quite full discussion of this aspect of the amendment may be fouud in United States v. Cruikshank, 92 U. S., 542; Virgimia v. Eives, 100 U. S., 313; and Ex parte Virginia, 100 U. S., 339. An apt illustration of this distinction may be found in some of the provisions of the original Constitution. Take the subject of contracts, for example. The Constitution prohibited the States from passing any law impairing the obligation of contracts. This did not give to Congress power to provide laws for the general enforcement of eontraets; nor power to invest the courts of the United States with jurisdiction over contracts, so as to enable parties to sue upon them in those courts. It did, however, give the power to provide remedies by which the impairmenjt of contracts by State legislation might be counteracted and corrected: and this power was exercised. The remedy which Congress actually provided was that contained in the 25th section of the Judiciary Act of 1789, 1 Stat., 85, giving to the Supreme Court of the United States jurisdiction by writ of error to review the final decisions of State courts whenever they should sustain the validity of a State statute or authority alleged to be repugnant to the Constitution or laws of the United States. By this means, if a State law was passed impairing the obligation of a contract, and the State tribunals sus- tained the validity of the law, the mischief could be corrected in this court. The legislation of Congress, and the proceedings pro- vided for under it, were corrective in their character. No attempt was made to draw into the United States courts the litigation of contracts generally; and no such attempt would have been sus- tained. We do not say that the remedy provided was the only one that might have been provided in that case. Probably Congress had power to pass a law giving to the courts of the United States direct jurisdiction over contracts alleged to be impaired by a State law; and under the broad provisions of the act of March 3d, 1875, ch. 137, 18 Stat., 470, giving to the circuit courts jurisdiction of all cases arising under the Constitution and law& of the United States, it is possible that such jurisdiction now exists. But under itiiat, or any othe" law, it must appear as well by allegation, as CIVIL RIGHTS CASES. 523 proof at the trial, that the Constitution had been Tiolated by the action of the State le^slature. Some obnoaorfs State law passed, or that might be passed, is necessary to be asstimed in order to lay the foundation of any federal remedy in the case; and for the very sufficient reason, that the constitutional prohibition is against State laws impairing the obligation of contracts. And so in the present case, until some State law has been piassed, or some State action thTOUgh its officers or agents has been taken, adverse to the rights of citizens sought to be protected 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 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 pro- vide against; and that is. State laws, or State action of some kind, adverse to the rights of the citizen secured by the amendment. Such legislation cannot properly cover the whole domain of rights appertaining to life, liberty and property, defining them and pro- viding for their vindication. Thait would be to establish a code of municipal law regulative of all private rights between man and man in society. It would be to make Congress 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 t* 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 prohibited by the amendment, therefore Congress may establish laws for their equal protection. In fine, the legislation which Con- gress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen, but corrective legislation, that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to stSte, if we could, what legislation would be proper for Congress to adopt. It is sufficient fox us to examine whether the law in question is of that character. An inspection of the law shows that it makes no reference what- £24 CASES ON CONSTITUTIONAL LAW. ever to any supposed or apprehended violation of tlie Fourteenth Amendment on the part of the States. It is not predicated on any such view. It proceeds ex diredo to declare that certain acts com- mitted by individuals shall be deemed offenses, and shall be prose- cuted 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 eases arising in States which have the justest laws respecting the personal rights of citizens, and whose authorities are ever ready to enforce such law^, as to those which arise in States that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence, and lays down rules for the conduct of individuals in society towards each other, and imposes sanctions for the enforcement of those rules, without refer- ring in any manner to any supposed action of the State or its authorities. If this legislation is appropriate for enforcing the prohibitions of the amendment, it is difficult to see where it is to stop. Why may not Congress with equal show of authority enact a code of laws for the enforcement and vindication of all rights of life, lib- erty, and property? If it is supposable that the States may deprive persons of life, liberty, and property without due process of law (and the amendment itself does not suppose this), why should not Congress proceed at once to prescribe due process of law for the protection of every one of these fundamental rights, in every possi- ble case, as well as to prescribe equal privileges in inns, public conveyances, and theatres? The truth is, that the implication of a power to legislate in this manner is based upon the assumption that if the States are forbidden to legislate or act in a particular Avay on a particular subject, and power is conferred upon Congress to enforce the prohibition, this gives Congress power to legislate generally upon that subject, and not merely power to provide modes of redress against such State legislation or action. The assumption is certainly unsound. It is repugnant to the Tenth Amendment of the Constitution, which declares that powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people. We have not overlooked the fact that the fourth section of the act now under consideration has been held by this court to be constitutional. That section declares "that no citizen, possessing all other qualifications which are or may be prescribed by law. CIVIL RIGHTS CASES. 525 shall be disqualified for service as grand or petit juror in any court of the United States, or of any State, on account of race, color, or previous condition of servitude; and any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid, shall, on conviction thereof, he deemed guilty of a mis- demeanor, and be fined not more than five thousand dollars." In Ex parte Virginia, 100 TJ. S., 339, it was held that an indictment against a State officer under this section for excluding persons of color from the jury lisit is sustainable. But a moment's attention to its terms will show that the section is entirely corrective in its character. Disqualifications for service on juries are only created by the lam, and the first part of the section is aimed at certain dis- qualifying laws, namely, those which make mere race or color a disqualification; and the second clause is directed against those who, assuming to use the authority of the State government, carry into effect such a rule of disqualification. In the Virginia case, the State, through its officer, enforced a rule of disqualification which the law was intended to abrogate and counteract. Whether the statute-book of the Staite actually laid down any such rule of disqualification, or not, the State, through its ofiicer, enforced such a rule: and it is against such State action, through its officers and agents, that the last clause of the section is directed. This aspect of the law was deemed sufficient to divest it of any unconstitu- tional character, and makes it differ widely from the first and sec- ond sections of the same act which we are now considering. These sections, in the objectionable features before referred to, are different also from the law ordinarily called the "Civil Eights Bill," originally passed April 9th, 1866, 14 Stat., 37, ch. 31, and re-enacted with some modifications in sections 16, 17, and 18, of the Enforcement Act, passed May 31st, 1870, 16 Stat., 140, ch. 114. That law, as re-enacted, after declaring that all persons with- in the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and none other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding, proceeds to enact, that any person who, under color of any law, statute, ordinance, regulation, or cus- tom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any rights secured or prO'- 526 CASES ON CONSTITUTIONAL LAW. tected by the preceding section (above quoted), or to different punisbnient, pains, or penalties, on aeeount of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misde- meanor, and subject to fine and imprisonment as specified in the act. This law is clearly correetire in its character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified. In the Revised Statutes, it is true, a very important clause, to wit, the words "any law, statute, ordinance, regulation or custom to the contrary notwithstanding," which gave the de- claratory section its point and effect, are omitted; but the penal part, by which the declaration is enforced, and which is really the effective part of the law, retains the reference to State laws, by making the penalty apply only to those who should subject parties to a deprivation of their rights under color of any statute, ordi- nance, custom, etc., of any State or Territory: thus preserving the corrective character of the legislation. Eev. St., § § 1977, 1978, 1979, 5510. The Civil Rights Bill here referred to is analogous in its character to what a law would have been under the original Constitution, declaring that the vailidity of contracts should not be impaired, and that if any person bound by a contract should refuse to comply with it, under color or pretence that it had been rendered void or invalid by a State law, he should be liable to an action upon it in the courts of the United States, with the addi- tion of a penalty for setting up such an unjust and unconstitutional defense. In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression, can- not 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, un- supported 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 sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress. An individual 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 enjoyment of the right in a particular case; he may commit an assault against the person, or commit murder, or use ruffian vie- CIVIL KIGHrS CASES. 527 lence at the polls, or slaader the good name of a fellow-citizen; 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 therefor to the laws of the State where the wrong- ful acts are committed. Henee, in all those cases where the Con- stitution seeks to protect the ;rights af ^he citizen against dis- criminative and unjust laws of the State rby prohibiting such laws, it is not individual offenses, but abrogation and denial of rights, which it denounces, and for which it clothes the Congress with power to 'provide a remedy. This abrogation and denial of rights, for which the States alone were or eonld be responsible, was the great seminal and fundamental wrong which was intended to be remedied. And the remedy to be provided must necessarily be predicated upon that wrong. It must assume that in the cases provided for, the evil or wrong actually committed rests upon some State law or State authority for its excuse and perpetration. Of course, these remarks do not apply to those cases in which Congress is clothed vrith direct and plenary powers of legislation over the whole subject, accompanied -with an express or implied denial of such power to the States, as in the regulation of com- merce with foreign nations, among the several States, and with the Indian tribesj the coining. of money, the establishment of post- offices and post-Poads, the declaring of war, etc. In these cases Congress has power to pass laws for regulating the subjects speciiied in every detail, and the conduct and transactions of individuals in respect thereof. But where a subject is not submitted :to the gen- eral legislative power of Congress, but is only submitted thereto for the purpose of rendering effective some prohibition against par- ticular State legislation or State action in reference to that subject, the power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its char- acter, adapted to counteract and redress the operation of such pro- hibited State laws or proceedings of State officers. 'It the principles of interpretation which we have laid down are correct, as we deem them to be (and they are in accord with the principles laid down in the cases before refeired to, as well as in the recent case of United States v. Harris, 106 U. S., 629), it is clear cthat the law in question cannot be sustained by any ^ant of legislati'veipower made to Congress by the Fourteenth Amendment. That amendment prohibits the States from denying to any person the equal protection of the laws, and declares that Congress shall have power to enforce, by appropriate legislation, the provisions 528 CASES ON CONSTITUTIONAL LAW. of the amendment. The law in question, without any reference to adverse State legislation on the subject, declares that all persons shall be entitled to equal accommodations and privileges of inns, public conveyances, and places of public amusement, and imposes a penalty upon any individual who shall deny to any citizen such equal accommodations and privileges. This is not corrective legis- tion; it is primary and direct; it takes immediate and absolute pos- session of the subject of the right of admission to inns, public con- veyances, and places of amusement. It supersedes and displaces State legislation on the same subjeat, or only allows it permissive force. It ignores such legislation, and assumes that the matter is one that belongs to the domain of national regulation. Whether it would not have been a more effective protection of the rights of citizens to have clothed Congress with plenary power over the whole subject, is not now the question. What we have to decide is, whether such plenary power has been conferred upon Congress by the Fourteenth Amendment; and, in our judgment, it has not. We have discussed the question presented by the law on the assumption that a right to enjoy equal accommodation and privi- leges in all inns, public conveyances, and places of public amuse- ment, is one of the essential rights of the citizen which no State can abridge or interfere with. Whether it is such a right, or not, is a different question which, in the view we have taken of the validity of the law on the ground already stated, it is noi; necessary to examine. We have also discussed the validity of the law in reference to cases arising in the States only; and not in reference to cases arising in the Territories or the District of Columbia, which axe subject to the plenary legislation of Congress in every branch of municipal regulation. Whether the law would be a valid one as applied to the Territories and the District is not a question for consideration in the cases before us: they all being cases arising within the limits of States. And whether Congress, in the exer- cise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public convey- ances passing from one State to another, is also a question which is not now before us, as the sections in question are not conceived in any such view. But the power of Congress to adopt direct and primary, as dis- tinguished from corrective legislation, on the subject in hand, is sought, in the second place, from the Thirteenth Amendment, which abolishes slavery. This amendment declares "that neither slavery, nor involuntary servitude, except as a punishment for CIVIL RIGHTS CASES. 539 crime, whereof the party shall have been duly convicted, shall exist ' within the United States, or any place subject to their jurisdiction;" and it gives Congress power to enforce the amendment by appro- pria-te legislation. This amendment, as well as the Fourteenth, is undoubtedly self-executing without any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished slavery, and established uni- versal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character; for the amendment is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. ' It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law: and, therefore, the Thirteenth Amendment may be regarded as nullifying all State laws which establish or uphold slavery. But it has a reflex char- acter also, establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed, that the power vested in Congress to enforce the article by appropriate leg- islation, clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States: and upon this assumption it is claimed, that this is sufficient' authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public con- veyances, and places of amusement; the argument being, that the denial of such equal accommodations and privileges is, in itself, a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that Congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and inci- dents, is the minor preposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theatre, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the Thirteenth Amendment. In a very able and learned presentation of the cognate question as to the extent of the rights, privileges and immunities of citizens which cannot rightfully be abridged by State laws under the Four- 34 530 CASES ON CONSTITUTIONAL LAW. teentii Amendment, made in a former case, a long list of burdens and disabilities of a servile character, incidental to feudal vassalage in France, and which were abolished by the decrees of the National Assembly, was presented for the purpose of showing that all ine- qualities and observances exacted by one man from another were servitudes, or badges of slavery, which a great nation, in its efEort to establish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long cus- tom, which had the force of law, and exacted by one man from another without the latter's consent. Should any such servitudes be imposed by a State law, there can be no doubt that the law would be repugnant to the Fourteenth, no less than to the Thir- teenth Amendment; nor any greater doubt that Congress has ade- quate power to forbid any such servitude from being exacted. But is there any similarity between such servitudes and a denial by the owner of an inn, a public conveyance, or a theatre,, of its accommodations and privileges to an individual, even though the denial be foimded on the race or color of that individual? Where does any slavery or servitude, or badge of either, arise from such an act of denial? Whether it might not be a denial of a right which, if sanctioned by the State law, would be obnoxious to the prohibitions of the Fburteenth Amendment,, is another question. But what has it to do with the question of slavery? It may be that by the Bkck Code (as it was called), in the Mmes when slavery prevailed, the proprietors of inns and public convey- ances were forbidden to receive persons of the African race, be- cause it might assist slaves to escape from the control of their mas- ters. This was merely a means of preventing such escapes, and was no part of the servitude itself. A law of that kind could not have any such object now, however justly it might be deemed an invasion of the party's legal right as a citizen, and amenable to the prohibitions of the Fourteenth Amendment. The long existence of African slavery in this country gave u^ very distinct notions of what it was, and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, dis- ability to hold property, to make contracts, to have a standing in court, to be a witness, against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offenses. Congress, as we have seen, by the Civil Eights Bill of 1866, passed in view of the Thir- teenth Amendment, before the Fourteenth was adopted, under- CIVIL RIGHTS CASES. 531 took to wipe out these burdens and disabilities, the necessary inci- dents of slavery, constituting its substance and visible form; and to secure to all citizens of every race and color, and without regard to previous servitude, those fundamental rights which are the essence of civil freedom, namely, the same right to make and en- force contracts, to sue, be parties, give evidence, and to inherit, purchase, lease, sell and convey property, as is enjoyed by white citizens. Whether this legislation was fully authorized by the Thirteenth Amendment alone, without the support which it after- ward received from the Fourteenth Amendment, after the adoption of which it was re-enaoted with some additions, it is not necessary to inquire. It is referred to for the purpose of showing that at that time (in 1866) Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery. We must not forget that the province and scope of the Thir- teenth and Fourteenth Amendments are different; the former simply abolished slavery: the latter prohibited the States from abridging the privileges or immunities of citizens of the United States; from depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The amendments are different, and the powers of Congress under them are different. What Congress has power to do under one, it may not have power to do under the other. Under the Thirteenth Amendment, it has only to do with slavery and its incidents. Under the Fourteenth Amendment, it has power to counteract and render nugatory all State laws and proceedings which have the effect to abridge any of the privileges or immuni- ties of citizens of the United States, or to deprive them of life, liberty or property without due process of law, or to deny to any of them the equal protection of the laws. Under the Thirteenth Amendment, the legislation, so far as necessary or proper to erad- icate all forms and incidents of slavery and involuntary servitude, may be direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not; under the Four- teenth, as we have already shown, it must necessarily be, and can only be, corrective in its character, addressed to counteract and afford relief against State regulations or proceedings. The only question under the pre^nt head, therefore, is, whether 532 CASES ON CONSTITUTIONAL LAW. the refusal to any persons of the accommodations of an inn, or a public conveyance, or a place of public amusement, by an individ- ual, and without any sanction or support from any State law or regulation, does inflict upon such persons any manner of servitude, or form of slavery, as those terms are understood in this country? Many wrongs may be obnoxious to the prohibitions of the Four- teenth Amendment which are not, in any just sense, incidents or elements of slavery. Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse-stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person, or class of persons, the right to pursue any peaceful avocations allowed to others. What is called class legislation would belong to this category, and would be obnoxious to the prohibitions of the Fourteenth Amendment, but would not necessarily be so to the Thirteenth, when not involving the idea of any subjection of one man to another. The Thirteenth Amend- ment has respect, not to distinctions of race, or class, or color, but to slavery. The Fourteenth Amendment extends its protection to races and classes, and prohibits any State legislation which has the effect of denying to any race or class, or to any individual, the equal protection of the laws. Now, conceding, for the sake of the argument, that the admis- sion to an inn, a public conveyance, or a place of public amuse- ment, on equal terms with all other citizens, is the right of every man and all classes of men, is it any more than one of those rights which the States by the Fourteenth Amendment are forbidden to deny to any person? And is the Constitution violated until the denial of the right has some State sanction or authority? Can the act of a mere individual, the owner of the inn, the public convey- ance or place of amusement, refusing the accommodation, be justly regarded as imposing any badge of slavery or servitude upon the applicant, or only as inflicting an ordinary civil injury, properly cognizable by the laws of the State, and presumably subject to redress by those laws until the contrary appears? After giving to these questions all the consideration which their importance demands, we are forced to the conclusion that such an act of refusal has nothing to do with slavery or involun- tary servitude, and that if it is violative of any right of the party, his redress is to be sought under the laws of the State; or if those laws are adverse to his rights and do not protect him, his remedy will be found in the corrective legislation which Congress has adopted, or may adopt, for counteracting the effect of State laws, or CIVIL RIGHTS CASES. 533 State action, prohibited by the Fourteenth Amendment. It would be running the slavery argument into the ground to make it apply to every aot of discrimination which a person may see fit to make as to the guests he will entertain, or as to the people he will take into his coach or cab or car, or admit to his concert or theatre, or deal with in other matters of intercourse or business. Innkeepers and public carriers, by the laws of all the States, bo far as we are aware, are bound, to the extent of their facilities, to furnish proper accommodations to all unobjectionable, persons who in good faith apply for them. If the laws themselves make any unjust discrim- ination, amenable to the prohibitions of the Fourteenth Amend- ment, Congress has full power to accord a remedy under that amendment and in accordance with it. When a man has emerged from slavery, and by the aid of benefi- cent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected. There were thousands of free colored people in this country before the abolition of slavery, enjoying all the essential rights of life, liberty and property the same as white citizens; yet no one, at that time, thought that it was any invasion of his per- sonal status as a freeman because he was not admitted to all the privileges enjoyed by white citizens, or because he was subjected to discriminations in the enjoyment of accommodations in inns, pub- lic conveyances and places of amusement. Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these re- spects has become established by constitutional enactment, it is not by force of the Thirteenth Amendment (which merely abolishes slavery), but by force of the Thirteenth [Fourteenth?] and Fif- teenth Amendments. On the whole, we are of opinion, that no countenance of au- thority for the passage of the law in question can be found in either the Thirteenth or Fourteenth Amendments of the Constitution; and no other ground of authority for its passage being suggested, it must necessarily be declared void, at least so far as its operation in the several States is concerned. This conclusion disposes of the cases now under consideration. In the cases of the United States v. Michael Ryan, and of Richard A. Robinson and Wife v. The Memphis & Charleston Railroad Company, the judgments must be affirmed. In the other cases. 534 CASES ON CONSTITUTIONAL. LAW. the answer to be given will be that the first and second sections of the act of Congress of March 1st, 1875, entitled "An Act to protect all citizens in their civil and legal rights," are unconstitu- tional and void, and that judgment should be rendered upon the several indictments in those cases accordingly. And it is so ordered' [Me. Justice Hablan delivered a dissenting opinion.] HrKTADO v. CALIFORNIA, no U. S., 516. Decided 1884. The Constitution of the State of California, adopted in 1879, in Article I, section 8, provides as follows: "Offences heretofore required to be prosecuted by indictment shall be prosecuted by information, after examination and com- mitment by a ma^strate, or by indictment without such examina- tion and commitment as may be prescribed by law. A grand Jury shall be summoned at least once a year in each county." . . . [Hurtado, having been charged with murder by an information filed with the District Attorney, was tried by jury, convicted, and sentenced to be hanged. Thereupon he filed certain objections to the execution of the sentence, one of which recited "that the said plaintiff in error had been held to answer for the said crime of murder by the district attorney of the said county of Sacramento, upon an information filed by him, and had been tried and illegally found guilty of said crime, without any presentment or indictment of any grand or other jury, and that the judgment rendered upom the alleged verdict of the jury in such case was and is void, and if executed would deprive the plaintiff in error of his life or liberty without due process of law."] Mr. Justice Matthews delivered the opinion of the court. After reciting the facts in the foregoing language, he continued: It is claimed on behalf of the prisoner that the conviction and sentence are void, on the ground that they are repugnant to that clause of the Fourteenth Article of Amendment of the Constitution of the United States which is in these words: "Nor shall any State deprive any person of life, liberty, or property without due process of law." HURTADO T. CALIFORNIA. 535 The proposition of law we are asked to affirm is that an indict- ment or presentment by a grand jury as known to the common law of England, is essential to that "due process of law," when applied to prosecutions for felonies, which is secured and guaranteed by this provision of the Constitution of the United States, and which accordingly it is forbidden to the States respectively to dispense with in the administration of criminal law. . . . [Here follow citations from Kalloch v. Superior Court, 56 Cal., 329, and Rowan V. The State, 30 Wis., 129.] On the other hand, it is maintained on behalf of the plaintiff in error that the phrase "due process of law" is equivalent to "law of the land," as found in the 29th chapter of Magna Charta; that by immemorial usage it has acquired a fixed, definite, and technical meaning; that it refers to and includes, not only the general prin- ciples of public liberty and private right, which lie at the founda- tion of all free government, but the very institutions which, ven- erable by time and custom, have been tried by experience and found fit and necessary for the preservation of those principles, and which, having been the birthright and inheritance of every English sub- ject, crossed the Atlantic with the colonists and were transplanted and established in the fundamental laws of the State; that, having been originally introduced into the Constitution of the United States as a limitation upon the powers of the government, brought into being by that instrument, it has now been added as an addi- tional security to the individual against oppression by the States themselves; that one of these institutions is that of the grand jury, an indictment or presentment by which against the accused in cases of alleged felonies is an essential part of due process of law, in order that he may not be harassed or destroyed by prosecutions founded only upon private malice or popular fury. This view is certainly supported by the authority of the great name of Chief Justice Shaw and of the court in which he pre- sided, which, in Jones v. Bobbins, 8 Gray, 329, decided that the 12th article of the Bill of Bights of Massachusetts, a transcript of Magna Charta in this respect, made an indictment or present- ment of a grand jury essential to the validity of a conviction in cases of prosecutions for felonies. In delivering the opinion of the court in that case, Merrick, J., alone dissenting, the Chief Justice said: "The right of individual citizens to be secure from an open and public accusation of crime, and from the trouble, expense, and anxiety of a public trial before a probable cause is established by the presentment and indictment of a grand jury, in case of high 536 CASES ON CONSTITUTIONAL LAW. offenses, is justly regarded as one of the securities to the inno- cent against hasty, malicious, and oppressive public prosecutions, and as one of the ancient immunities and privileges of English liberty." . . . "It having been stated," he continued, "by Lord Coke, that by the 'law of the land' was intended a due course of proceeding according to the established rules and practice of the courts of common law, it may, perhaps, be suggested that this might include other modes of proceeding sanctioned by the com- mon law, the most familiar of which are, by informations of dif- ferent kinds, by the officers of the crown in the name of the King. But, in reply to this, it may be said that Lord Coke himself explains his own meaning by saying 'the law of the land,' as ex- pressed in Magna Charta, was intended due process of law, that is, by indictment or presentment of good and lawful men. And fur- ther, it is stated on the authority of Blackstone, that informations of every kind are confined by the constitutional law to misde- meanors only. 4 Bl. Com., 310." . . . This view of the meaning of Lord Coke is the one taken by Merrick, J., in his dissenting opinion in Jones v. Eobbins, 8 Gray, 329, who states his conclusions in these words: "It is the forensic trial, under a broad and general law, operat- ing equally upon every member of our community, which the words •by the law of the land,' in Magna Charta, and in every subsequent declaration of rights which has borrowed its phraseology, make essential to the safety of the citizen, securing thereby both his liberty and his property, by preventing the unlawful arrest of his person or any unlawful interference with his estate." See also State v. Starling, 15 Rich. (S. C.) Law, 120. Mr. Eeeve, in 2 History of Eng. Law, 43, translates the phrase, nisi'per legale judicium parium suorum velper legem terrcs. "But by the Judgment of his peers, or by some other legal process or proceeding adapted by the law to the nature of the case." Chancelor Kent, 2 Com., 13, adopts this mode of construing the phrase. Quoting the language of Magna Charta, and refer- ring to Lord Coke's comment upon it, he says: "The better and larger definition of due process of law is that it means law in its regular course of administration through courts of justice." This accords with what is said in Westervelt v. Gregg, 12 N". Y., 202, by Denio, J., p. 212: "The provision was designed to protect the citizen against all mere acts of power, whether flowing from the legislative or ex- ecutive branches of the government." HURT ADO V. CALIFORNIA. 537 The principal and true meaning of the phrase has never been more tersely or accurately stated than by Mr. Justice Johnson, in Bank of Columbia v. Okely, 4 Wheat., 235-244: ''As to the words from Magna Charta, incorporated into the Con- stitution of Maryland, after volumes spoken and written with a view to their exposition, the good sense of mankind has at last settled down to this: that they were intended to secure the indi- vidual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice." And the conclusion rightly deduced is, as stated by Mr, Cooley, Constitutional Limitations, 356: "The principles, then, upon which the process is based, are to determine whether it is 'due process' or not, and not any con- siderations of mere form. Administrative and remedial process may be changed from time to time, but only with due regard to the landmarks established for the protection of the citizen." It is urged upon us, however, in argument, that the claim made in behalf of the plaintiff in error is supported by the decision of this court in Murray's Lessee v. Hoboken Land & Improvement Company, 18 How., 272. There Mr. Justice Curtis, delivering the opinion of the court, after showing, p. 276, that due process of law must mean something more than the actual existing law of the land, for otherwise it would be no restraint upon legisla- tive power, proceeds as follows: "To what principle, then, are we to resort to ascertain whether this process, enacted by Congress, is due process? To this the answer must be twofold. We must examine the Constitution itself to see whether this process be in conflict with any of its provisions. If not found to be so, we must 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 con- dition by having been acted on by them after the settlement of this country." This, it is argued, furnishes an indispensable test of what consti- tutes "due process of law;" that any proceeding otherwise author- ized by law, which is not thus sanctioned by usage, or which super- sedes and displaces one that is, cannot be regarded as due process of law. But this inference is unwarranted. The real syllabus of the pas- sage quoted is, that a process of law, which is not otherwise for- bidden, must be taken to be due process of law, if it can show the 538 CASES ON CONSTITUTIONAL LAW. eanction of settled usage both in England and in this country; but it by no means follows that nothing else can be due process of law. The point in the case cited arose in reference to a summary proceeding, questioned on that account, as not due process of law. The answer was: however exceptional it may be, as tested by definitions and principles of ordinary procedure, nevertheless, this, in substance, has been immemorially the actual law of the land, and, therefore, is due process of law. But to hold that such a ^araeteristic is essential to due process of law, would be to deny every quality of the law but its age, and to render it incapable of progress or improvement. It would be to stamp upon our juris- prudence the unehangeableness attributed to the laws of the Medes and Persians. This would be all the more singular and surprising, in this quick a.nd active age, when we consider that, owing to the progressive development of legal ideas and institutions in England, the words of Magna Charta stood for very different things at the time of the separation of the American colonies from what they represented originally. . . . This flexibility and capacity for growth and adaptation is the peculiar boast and excellence of the common law. Sir James Mackintosh ascribes this principle of development to Magna Charta itself. To use his own language: "It was a peculiar advantage that the consequences of its prin- ciples were, if we may so speak, only discovered slowly and grad- ually. It gave out on each occasion only so much of the spirit of liberty and reformation as the circumstances of succeeding gen- erations required and as their character would safely bear. For almost five centuries it was appealed to as the decisive authority on behalf of the people, though commonly so far only as the neces- sities of each case demanded." 1 Hist, of England, 221. The Constitution of the United States was ordained, it is true, by descendants of Englishmen, who inherited the traditions of English law and history; but it was made for an undefined and expanding future, and for a people gathered and to be gathered from many nations and of many tongues. And while we take just pride in the principles and institutions of the common law, we are not to forget that in lands where other systems of jurisprudence prevail, the ideas and processes of civil justice are also not un- known. Due process of law, in spite of the absolutism of con- tinental governments, is not alien to that code which survived the Eoman Empire as the foundation of modem civilization in Europe, and which has given us that fundamental maxim of distributive HURTADO T. CALIFORNIA. 539 justice, — suum cuique tribuere. There is nothing in Magna Charta, rightly construed as a broad charter of public right and law, which ought to exclude the best ideas of all systems and of CTery age; and as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experi- ences of our own situation and system will mould and shape it into new and not less useful forms. The concessions of Magna Charta were wrung from the King as guaranties against the oppressions and usurpations of his pre- rogative. It did not enter into the minds of the barons to provide security against their own body or in favor of the Commons by limiting the power of Parliament; 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 never regarded as inconsistent with the law of the land; for notwithstanding what was attributed to Lord Coke in Bonham's Case, 8 Eep., 115, 118a, the omnipotence of Parlia- ment over the common law was absolute, even against common 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 Commons. In this country written constitutions were deemed essential to protect the rights and liberties of the people against the encroach- ments of power delegated to their governments, and the provisions of Magna Charta were incorporated into Bills of Eights. They were limitations upon all the powers of government,* legislative as well as executive and judicial. It necessarily happened, therefore, that as these broad and general 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 history and law, they would receive and justify a corresponding and more comprehensive interpreta- tion. Applied in England only as guards against executive usurpa- tion and tyranny, here they have become bulwarks also against ar- bitrary legislation; but, in that application, as it would be incon- gruous to measure and restrict them by the ancient customary Eng- lish law, they must be held to guarantee, not particular forms of procedure, but the very substance of individual rights to life, lib- erty, and property. Eestraints that could be fastened upon executive authority with precision and detail, might prove obstructive and injurious when 540 CASES ON CONSTITUTIONAL LAW. imposed on the just and necessary discretion of legislative power; and, while in every instance, laws that violated express and specific injunctions and prohibitions might, without embarrassment, be judicially declared to be void, yet, any general principle or maxim, founded on the essential nature of law, as a just and reasonable expression of the public will and of government, as instituted by popular consent and for the general good, can only be applied to cases coming clearly within the scope of its spirit and purpose, and not to legislative provisions 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 power over the substance of original justice." Tract on the Popery Laws, 6 Burke's Works, ed. Little & Brown, 323. Such is the often-repeated doctrine of this court. . . . [Here are given quotations from Munn v. 111., 94 U. S., 113; Walker v. Savinet, 92 U. S., 90; Kennard v. Louisiana, 93 IT. S., 480; Davidson v. N. 0., 96 U. S., 97.] We are to construe this phrase in the Fourteenth Amendment by the usus loquendi of the Constitution itself. The same words are contained in the Fifth Amendment. That article makes spe- cific and express provision for perpetuating the institution of the grand jury, so far as relates to prosecutions for the more aggra- vaited crimes under the laws of the United States. It declares that: "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall he be compelled in any crim- inal case to be witness against himself." [It then immediately adds:] "Nor be deprived of life, liberty, or property without due process of law." According to a recognized canon of interpretation, especially ap- plicable to formal and solemn instruments of constitutional law, we are forbidden to assume, without clear reason to the contrary, that any part of this most imnortant amendment is superfluous. The natural and obvious inference is, that in the sense of the Con- stitution, "due process of law" was not meant or intended to in- clude, ex vi termini, the institution and procedure of a grand jury in any case. The conclusion is equally irresistible, that when the same phrase was employed in the Fourteenth Amendment to re- etrain the action of the States, it was used in the same sense and HURTADO V. CALIFORNIA. 541' with no greater extent; and that if in the adoption of that amend- ment it had been part of its purpose to perpetuate the institution of the grand jury in all the States, it would hare embodied, as did the Fifth Amendment, express declarations to that effect. Due process of law in the latter refers to that law of the land which derives its authority from the legislative powers conferred upon Congress by the Constitution of the United States, exercised within the limits therein prescribed, and interpreted according to the prin- ciples of the common law. In the Fourteenth Amendment, by parity of reason, it refers to 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 prin- ciples of liberty and justice which lie at the base ol all our civil and political institutions-, and the greatest security for which re- sides in the right of the people to make their own laws, and alter them at their pleasure. . . . [Here follows a citation from Missouri v. Lewis, 101 U. S., 32-31.] But it is not to be supposed that these legislative powers are absolute and despotic, and that the amendment prescribing due process of law is too vague and indefinite to operate as a practical restraint. It is not every act, legislative in form, that is law. Law is something more than mere will exerted as an act of power. It, must be not a special rule for a particular person or a particular case, but, in the language of Mr. Webster, in his familiar defini- tion, "the general law, a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial," so "that every citizen shall hold his life, liberty, property, and immunities under the protection of the general rules which govern society;" and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments and decrees, and other similar special, partial, and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its objects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude. And the limitations imposed by our constitutional law upon the action of the governments, both State and national, are essential to the preservation of public and pri- vate rights, notwithstanding the representative character of our political institutions. The enforcement of these limitations by judicial process is the device of self-governing communities to pro- tect the rights of individuals and minorities, as well against the 542 CASES ON CONSTITUTIONAL LAW. power of numbers as against the violence of public agents tran- scending the limits of lawful authoriiy, even when acting in the name and wielding the force of the government. The Supreme Court of Mississippi, in a well-considered case, — Brown v. Levee Commissioners, 50 Miss., 468, — speaking of the meaning of the phrase "due process of law," says: "The principle does not demand that the laws existing at any point of time shall be irrepealable, or that any forms of remedies shall necessarily continue. It refers to certain fundamental rights which that sys- tem of jurisprudence, of which ours is a derivative, has always recognized. If any of these are disregarded in the proceedings by which a person is condemned to the loss of life, liberty, or property, then the deprivation has not been by 'due process of law.' " . . . [Here follows a citation from Loan Association v. To- peka, 20 Wallace, 655-662.] It follows that any legal proceeding enforced by public author- ity, whether sanctioned by age and custom, or newly devised in the disereition of the legislative power, in furtherance of the gen- eral public good, which regards and preserves these principles of liberty and justice, must be held to be due process of law. The Constitution of Connecticut, adopted in 1818 and in force when the Fourteenth Amendment took effect, requires an indict- ment or presentment of a grand jury only in cases where the pun- ishment of the crime charged is death or imprisonment for life, and yet it also declares that no person shall "be deprived of life, liberty, or property but by due course of law." It falls short, therefore, of that measure of protection which it is claimed is guaranteed by Magna Charta to the right of personal liberty; notwithstanding which it is no doubt justly said in Swift's Digest, 17, that "This sacred and inestimable right, without which all others are of little value, is enjoyed by the people of this State in as full extent as in any country on the globe, and in as high a degree as is consistent with the nature of civil government. No individ- ual or body of men has a discretionary or arbitrary power to com- mit any person to prison: no man can be restrained of his liberty, be prevented from removing himself from place to place as he chooses, be compelled to go to a place contrary to his inclination, or be in any way imprisoned or confined, unless by virtue of the express laws of the land." Tried by these principles, we are unable to say that the substitu- tion for a presentment or indictment by a grand jury of the pro- ceeding by information, after examination and commitment by UNITED STATES T. KAGAMA. 543 a magistrate, certifying to the probable guilt' of the defendant, with the right on his part to the aid of counsel, and to the crose- examination of the witnesses produced for the prosecution, is not due process of law. It is, as we have seen, an ancient proceeding at common law, which might include every case of an offense of less grade than a felony, except misprision of treason; and in every circumstance of its administration, as authorized by the statute of California, it carefully considers and guards the substantial in- terest of the prisoner. It is merely a preliminary proceeding, and can result in no final judgment, except as a consequence of a reg- ular judicial trial, conducted precisely as in cases of indictments. In reference to this mode of proceeding at the common law, and which he says "is as ancient as the common law itself," Blackstone adds (4 Com., 305): "And as to those offenses in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his Majesty's Court of King's Bench, the subject had no reason to complain. The same notice Was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges^ as if the prosecution had originally been by indictment." For these reasons, finding no error therein, the judgment of the Supreme Court of California is affirmed. [Mb. Justice Harlan rendered a dissenting opinion.] UNITED STATES v. KAGAMA. 118 U. S., 375. Decided 1886. The ease is stated in the opinion of the court. . . . Me. Justice Miller delivered the opinion of the court. The case is brought here by certificaite of division of opinion between the Circuit Judge and the District Judge holding the Circuit Court of the United States for District of California. The cLuestions certified arise on a demurrer to an indictment against two Indians for murder committed on the Indian reserva- tion of Hoopa Valley, in the State of California, the person mur- dered being also an Indian of said reservation. 544: CASES ON CONSTITUTIONAL LAW. Though there are six questions certified as the subject of differ- ence, the point of them all is well set out in the third and sixth, which are as follows: — "3. Whether the provisions of said section 9 (of the act of Congress of March 3, 1885), making it a crime for one Indian to commit murder upon another Indian, upon an Indian reserva- tion situated wholly within the limits of a State of the Union, and making such Indian so committing the crime of murder within and upon such Indian reservation 'subject to the same laws' and subject to be 'tried in the same courts, and in the same manner, and subject to the same penalties as are all other persons' com- mitting the crime of murder 'within the exclusive jurisdiction of the United States,' is a constitutional and valid law of the United States?" "6. Whether the courts of the United States have juiisdietion or authority to try and punish an Indian belonging to an Indian tribe for committing the crime of murder upon another Indian belonging to the same Indian tribe, both sustaining the usual tribal relations, said crime having been committed upon an Indian reservation made and set apart for the use of the Indian Iffibe to which said Indians both belong?" The indictment sets out in two counts that Kagama, alias Pactah Billy, an Indian, murdered lyouse, alias Ike, another Indian, at Humboldt County, in the State of California, within the limits of the Hoopa Valley Eeservation, and it charges Mahawaha, alias .Ben, also an Indian, with aiding and abetting in the murder. The law referred to in the certificate is the last section of the Indian appripriation act of that year, and is as follows: "§ 9. That immediately upon and after the date of the passage of this act all Indians committing against the person or property of another Indian or other person any of the following crimes, namely, murder, manslaughter, rape, assault with intent to kill, arson, burglary and larceny, within any Territory of the United States, and either within or without the Indian reservation, shall be subject therefor to the laws of said Territory relating to gaid crimes, and shall be tried therefor in the same courts and in the same manner, and shall be subject to the same penalties, as are all other persons charged with the commission of the said crimes, respectively; and the said courts are hereby given jurisdiction in all such cases; and all such Indians committing any of the above crimes against the person or property of another Indian or other person, within the boundaries of any State of the United States, and within the limits of any Indian reservation, shall be UNITED STATES v. KAGAMA. 545 subject to the same laws, tried in the same courts and in the same manner, and subject to the same penalties, as are all other persons committing any of the above crimes within the exclusive juris- diction of the United States." 23 Stat., eh. 341, 363; § 9, 385. The above enactment is clearly separable into two distinct definitions of the conditions under which Indians may be punished for the same crimes as defined by the common law. The first of these is where the offense is committed within the limits of a territorial government, whether on or off an Indian reservation. In this class of cases the Indian charged with the crime shall be judged by the laws of the Territory on that subject, and tried by its courts. This proposition itself is new in legislation of Congress, which has heretofore only undertaken to punish an Indian who sustains the usual relation to his tribe, and who commits the offense in the Indian country, or on an Indian reservation, in ex- ceptional cases; as where the offense was against the person or property of a white man, or was some violation of the trade and intercourse regulaitions imposed by Congress on the Indian tribes. It is new, because it now proposes to punish these offenses when, they are committed by one Indian on the person or property of another. The second is where the offense is committed by one Indian against the person or property of another, within the limits of a State of the Union, but on an Indian reservation. In this case,, of which the State and its tribunals would have jurisdiction if the offense was committed by a white man outside an Indian reserva- tion, the courts of the United States are to exercise jurisdiction as if the offense had been committed at some place within the exclusive jurisdiction of the United States. The first clause sub-, jects all Indians guilty of these crimes committed within the limits of a Territory, to the laws of that Territory, and to its courts for trial. The second, which applies solely to offenses by Indians which are committed within the limits of a State and the limits of a reservation, subjects the offenders to the laws of the United States passed for the government of places under the exclusive jurisdiction of those laws, and to trial by the courts of the United States. This is a still further advance, as asserting this jurisdic- tion over the Indians within the limits of the States of the Union. Although the offense charged in this indictment was com- mitted within a State and not within a Territory, the considera- tions which are necessary to a solution of the problem in regard to the one must in a large degree affect the other. The Constitution of the United States is almost silent in regard 35 546 CASES ON CONSTITUTIONAL LAW. to the relations of the government which was established by it to the numerous tribes of Indians within its borders. In declaring the basis on which representation in the lower branch of Congress and direct taxation should be apportioned, it was fixed that it should be according to numbers, excluding In- dians not taxed, which, of course, excluded nearly all of that race, but which meant that if there were such within a State as were taxed to support the government, they should be counted for rep- resentation, and in the computation for direct taxes levied by the United Staites. This expression, excluding Indians not taxed, is found in the XlVth amendment, where it deals with the same subject under the new conditions produced by the emancipation of the slaves. Neither of these shed much light on the power of Congress over the Indians in their existence as tribes, distinct from the ordinary citizens of a State or Territory. The mention of Indians in the Constitution which has received most attention is that found in the clause which gives Congress "power to regulate commerce with foreign nations and among the several States, and with the Indian tribes." This cause is relied on in the argument in the present case, the proposition being that the statute under consideration is a regula- tion of commerce with the Indian tribes. But we think it would be a very strained construction of this clause, that a system of criminal laws for Indians living peaceably in their reservations, which left out the entire code of trade and intercourse laws justly enacted under that provision, and established punishments for the common-law crimes of murder, manslaughter, arson, burglary, larceny, and the like, without any reference to their relation to any kind of commerce, was authorized by the grant of power to regulate commerce with the Indian tribes. While we are not able to see, in either of these clauses of the Constitution and its amendments, any delegation of power to enact a code of criminal law for the punishment of the worst class of crimes known to civilized life when committed by Indians, there is a suggestion in the manner in which the Indian tribes are introduced into that clause, which may have a bearing on the subject before us. The commerce with foreign nations is distinctly stated as submitted to the control of Congress. Were the Indian tribes foreign na- tions? If so, they came within the first of the three classes of commerce mentioned, and did not need to be repeated as Indian tribes. Were they nations, in the minds of the framers of the Constitution? If so, the natural phrase would have been "foreign nations and Indian nations," or, in the terseness of language uni- UNITED STATES v. KAGAMA. 647 formly used by the framers of the instrument, it would naturally have been "foreign and Indian naitions." And so in the case of The Cherokee Nation v. The State of Georgia, 5 Pet., 1, 20, brought in the Supreme Court of the United States, under the declara- tion that the judicial power extends to suits between a State and foreign States, and giving to the Supreme Court original jurisdic- tion where a State is a party, it was conceded that Georgia as a State came within the clause, but held that the Cherokees were not a State or nation within the meaning of the Constitution, so as to be able to maintain the suit. But these Indians are within the geographical limits of the United States. The soil and the people within these limits are under the political control of the government of the United States, or of the States of the Union. There exist within the broad domain of sovereignty but these two. There may be cities, counties, and other organized bodies with limited legislative functions, but they are all derived from, or exist in, subordination to one or the other of these. ' The territorial governments owe aU their powers to the statutes of the United States conferring on them the powers which they exercise, and which are liable to be withdrawn, modified, or repealed at any time by Congress. What authority the State gov- ernments may have to enact criminal laws for the Indians will be presently considered. Bui this power of Congress to organize territorial governments, and make laws for their inhabitants, arises not so much from the clause in the Constitution in regard to dis- posing of and making rules and regulations concerning the Terri- tory and other property of the United States, as from the owner- ship of the country in which the Territories are, and the right of exclusive sovereignty which must exist in the national government, and can be found nowhere else. Murphy v. Eamsey, H4 U. S., 15, 44. In the case of American Ins. Co. v. Canter, 1 Pet., 511, 543, in which the condition of the people of Florida, then under a terri- torial government, was under consideration, Marshall, Chief Jus- tice, said: "Perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the meajis of self-government, may result necessarily from the fact that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the. possession of it is unquestioned." In the case of the United States v. Eogers, 4 How., 567, 573, 648 CASES ON CONSTITUTIONAL LAW. where a white man pleaded in abatement to an indictment for murder committed in the country of the Cherokee Indians, that he had been adopted by and become a member of the Cherokee tribe. Chief Justice Taney, said: "The country in which the crime is charged to have been committed is a part of the territory of the United States, and not within the limits of any particular State. It is true it is occupied by the Cherokee Indians. But it has been assigned to them by the United States as a place of domieil for the tribe, and they hold with the assent of the United States, and under their authority." After referring to the policy of the Euro- pean nations and the United States in asserting dominion over all the country discovered by them, and the justice of this course, he adds: "But had it been otherwise, and were the right and the propriety of exercising this power now open to question, yet it is a question for the law-making and political departments of the government, and not for the judicial. It is our duty to expound and execute "the law as we find it, and we think it too firmly and clearly established to admit of dispute, that the Indian tribes, residing within the territorial limits of the United States, are sub- ject to their authority, and when the country occupied by one of them is not within the limits of one of the States, Congress may by law punish any offense committed there, no matter whether the offender be a white man or an Indian." The Indian reservation in the case before us is land bought by the United States from Mexico by the treaty of Guadaloupe Hi- dalgo, and the whole of California, with the allegiance of its in- habitants, many of whom were Indians, was transferred by that treaty to the United States. The relation of the Indian tribes living within the borders of the United States, both before and since the Revolution, to the people of the United States has always been an anomalous one and of a complex character. Following the policy of the European governments in the dis- covery of America towards the Indians who were found here, the colonies before the Eevolution and the States and the United States since, have recognized in the Indians a possessory right to the soil over which they roamed and hunted and established occa- sional villages. But they asserted an ultimate title in the land itself, by which the Indian tribes were forbidden to sell or transfer it to other nations or peoples without the consent of this para- mount authority. When a tribe wished to dispose of its land, or any part of it, or the State or the United States wished to pur- chase it, a treaty with the tribe was the only mode in which this UNITED STATES v. KAGAMA. 549 could be done. The United States recognized no right in private persons, or in other nations, to make such a purchase by treaty or otherwise. With the Indians themselves these relations are equally difficult to define. They were, and always have been, re- garded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as pos- sessed of the full attributes of sovereignty, but as a separate peo- ple, with the power of regulating their internal and social rela- tions, and thus far not brought under the laws of the Union or of the State within whose limits they resided. Perhaps the best statement of their position is found in the two opinions of this court by Chief Justice Marshall in the case of The Cherokee Nation v. Georgia, 5 Pet., 1, and in the case of Worcester v. State of Georgia, 6 Pet., 515, 536. These opinions are exhaustive; and in the separate opinion of Mr. Justice Baldwin, in the former, is a very valuable resume of the treaties and statutes concerning the Indian tribes previous to and during the confed- eration. In the first of the above cases it was held that these tribes were neither States nor nations, had only some of the attributes of sov- ereignty, and could not be so far recognized in that capacity as to sustain a suit in the Supreme Court of the United States. In the second case it was said that they were not subject to the juris- diction asserted over them by the State of Georgia, which, because they were within its limits, where they had been for ages, had attempted to extend her laws and the jurisdiction of her courts over them. In the opinions in these cases they are spoken of as "wards of the nation," "pupils," as local dependent communities. In this spirit the United States has conducted its relations to them from its organization to this time. But, after an experience of a hun- dred years of the treaty-making system of government, Congress has determined upon a new departure — ^to govern them by acts of Congress. This is seen in the act of March 3, 1871, embodied in § 2079 of the Eevised Statutes: "No Indian nation or tribe, within the territory of the United States, shall be acknowledged or recognized as an independent nation, tribe, or power, with whom the United States may con- tract by treaty; but no obligation of any treaty lawfully made and ratified with any such Indian nation or tribe prior to March third, eighteen hundred and seventy-one, shall be hereby invalidated or impaired." The case of Crow Dog, 109 U. S., 566, in which an agreement 550 CASES ON CONSTITUTIONAL LAW. with the SioTix Indians, ratified by an act of Congress, was sup- posed to extend over them the laws of the TJnited States and the jnrisdiction of its courts, covering murder and other grave crimes, shows the purpose of Congress in this new departure. The de- cision in that case admits that if the intention of Congress had been to punish, by the United States courts, the murder of one Indian by another, the law would have been valid. But the court could not see, in the agreement with the Indians sanctioned by Congress, a purpose to repeal § 2146 of the Kevised Statutes, which expressly excludes from that jurisdiction the case of a crime committed by one Indian against another in the Indian country. The passage of the act now under consideration was designed to remove that objection, and to go further by including such crimes on reservations lying within a State. Is this latter fact a fatal objection to the law? The statute itself contains no express limitations upon the powers of a State or the jurisdiction of its courts. If there be any limitation in either of these, it grows out of the implication arising from the fact that Congress has defined a crime committed within the State, and made it punishable in the courts of the TJnited States. But Con- gress has done this, and can do it with regard to all offenses relat- ing to matters to which the Federal authority extends. Does that authority extend to this case? It will be seen at once that the nature of the offense (murder) is one which in almost all cases of its commisison is pxmishable by the laws of the States, and within the jurisdiction of their courts. The distinction is claimed to be that the offense under the statute is committed by an Indian, that it is committed on a reservation set apart within the State for the residence of the tribe of Indians by the United States, and the fair inference is that the offending Indian shall belong to that or some other tribe. It does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation. It seems to us that this is within the competency of Congress. These Indian tribes axe the wards of ihe nation. They are com- munities dependent on the United States. Dependent largely for their food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Be- cause of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weak- UNITED STATES v. KAGAMA. 551 ness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen. In the case of Worcester v. The State of Georgia, above cited, it was held that, though the Indians had by treaty sold their land within that State and agreed to remove away, which they failed to do, the State could not, while they remained on those lands, extend its laws, criminal and civil, over the tribes; that the duty and power to compel their removal was in the United States, and the tribe was under their protection, and could not be subjected to the laws of the State and the process of its courts. The same thing was decided in the case of Fellows v. Black- smith & Others, 19 How., 366. In this case, also, the Indians had sold their lands under supervision of the States of Massachusetts and New York, and had agreed to remove within a given time. When the time came a suit to recover some of the land was brought in the Supreme Court of New York, which gave judgment for the plaintiff. But this court held, on writ of error, that the State could not enforce this removal, but the duty and power to do so was in the United States. See also the case of the Kansas Indians, 5 Wall., 737; New York Indians, 5 Wall., 761. The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection, as well as to the safety of those among whom they dwell. It must exist in that government, because it never has existed anywhere else, because the theater of its exercise is within the. geographical limits of the United States, because it has never been denied, and because it alone can enforce its laws on all the tribes. We answer the questions propounded to us, that the 9th section of the act of March, 1885, is a valid law in both its branches, and that the Circuit Court of the United States for the District of Cali- fornia has jurisdiction of the offense charged in the indictment in this case. Note.— In United States v. Wong Kim Ark, 169 U. S., 649 (1898), the court held that a child born in California of parents subject to the Emperor of China was born a citizen of the United States, even though his parents were by law expressly excluded from American citizenship. On this decision see Boyd, "The Basis of Citizenship," in The Nation for July 7, 1898. XII. THE FEDERAL GOVERNMENT AND THE STATES. TEXAS V. WHITE et al. 7 Wallace, 700. Decided 1868. [The facts are sufficiently stated in the opinion of the court.] The Chief Justice delivered the opinion of the court. This is an original suit in this court, in which the State of Texas, claiming certain bonds of the United States as her property, asks an injunction to restrain the defendants from receiving payment from the National government, and to compel the surrender of the bonds to the State. It appears from the bill, answers, and proofs, that the United States, by act of September 9, 1850, offered to the State of Texas, in compensation for her claims connected with the settlement of her boundary, $10,000,000 in five per cent, bonds, each for the sum of $1,000; and that this offer was accepted by Texas. One- half of these bonds were retained for certain purposes in the Na- tional treasury, and the other half were delivered to the State. The bonds thus delivered were dated January 1, 1851, and were all made payable to the State of Texas, or bearer, and redeemable after the 31st day of December, 1864. They were received in behalf of the State by the comptroller of public accounts, under authority of an act of the legislature, whichj besides giving that authority, provided that no bond should be available in the hands of any holder until after indorsement by the governor of the State. After the breaking out of the rebellion, the insurgent legislature of Texas, on the 11th of January, 1862, repealed the act requiring the indorsement of the governor,^ and on the same day provided for the organization of a military board, composed of the governor, comptroller, and treasurer; and authorized a majority of that board to provide for the defense of the State by means of any bonds in the treasury, upon any account, to the extent of $1,000,000.'' The 1 Acta of Texas, 1862, p. 45. 2 Texas Laws, 55. TE3XAS V. WHITE, 553 defense contemplated by the act was to be made against the United States by war. Under this authority the military board entered into an agreement with George W. White and John Chiles, two of the defendants, for the sale to them of one hundred and thirty- five of these bonds, then in the treasury of the State, and seventy- six more, than deposited with Droege & Co., in England; in pay- ment for which they engaged to deliver to the board a large quan- tity of cotton cards and medicines. This agreement was made on the 12th of January, 1865. On the 12th of March, 1865, White and Chiles received from the military board one hundred and thirty- five of these bonds, none of which were indorsed by any governor of Texas. Afterward, in the course of the years 1865 and 1866, some of the same bonds came into the possession of others of the defendants, by purchase, or as security for advances of money. Such is a brief outline of the case. It will be necessary here- after to refer more in detail to some particular circumstances of it. The first inquiries to which our attention was directed by coun- sel, arose upon the allegations of the answer of Chiles (1) that no sufficient authority is shown for the prosecution of the suit in the name and on the behalf of the State of Texas; and (2) tbat the State, having severed her relations with a majority of the States of the Union, and having by her ordinance of secession at- tempted to throw ofE her allegiance to the Constitution and gov- ernment of the United States, has so far changed her status as to be disabled from prosecuting suits in the National courts. The first of these allegations is disproved by the evidence. A letter of authority, the authenticity of which is not disputed, has been produced, in which J. W. Throckmorton, elected governor under the constitution adopted in 1866, and proceeding under an act of the State legislature relating to these bonds, expressly ratifies and confirms the action of the solicitors who filed the billj and empowers them to prosecute this suit; and it is further proved by the affidavit of Mr. Paschal, counsel for the complainant, that he was duly appointed by Andrew J. Hamilton, while provisional governor of Texas, to represent the State of Texas in reference to the bonds in controversy, and that his appointment has been renewed by E. M. Pease, the actual governor. If Texas was a State of the Union at the time of these acts, and these persons or either of them, were competent to represent the State, this proof leaves no doubt about the question of authority. The other allegation presents a question of Jurisdiction. It is not questioned that this court has original jurisdiction of suits by States against citizens of other States, or that the States entitled 554 CASES ON CONSTITUTIONAL LAW. to invoke thia jurisdiction must be States of the Union. But, it is equally clear that no such Jurisdiction tafi been conferred upon this court of suits by any other political communities than such States. If, therefore, it is true that the State of Texas was not at the time of filing this bill, or is not now, one of the United States, we have no jurisdiction of this suit, and it is our duty to dismiss it. It [the word state] describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government. . . . In the Constitution the term state most frequently expresses the combined idea just noticed, of people, territory, and govern- ment. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of de- fined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the con- sent of the governed. It is the union of such states, under a com- mon constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States, and makes of the people and states which compose it one people and one country. . . . In all respects, so far as the objects could be accomplished by ordinances of the convention, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up, and new relations to a new government were established for them. The position thus assumed could only be maintained by arms, and Texas accordingly took part, with the other Confederate States, in the war of the rebellion, which these events made inevitable. Dur- ing the whole of that war there was no governor, or judge, or any other State officer in Texas, who recognized the National author- ity. Nor was any officer of the United States permitted to exer- cise any authority whatever under the National government within the limits of the States, except under the immediate protection of the National military forces. Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union? It is needless to discuss, at length, the question whether the right TEXAS V. WHITE. 555 of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States. The Union of the States never was a purely artificial and arbi- trary relation. It began among the Colonies, and grew out of com- mon origin, mutual sympathies, kindred principles, similar inter- ests, and geographical relations. It was confirmed and strength- ened by the necessities of war, and received definite form, and character, and sanction from the Articles of Confederation. By these the Union was solemnly declared to "he perpetual." And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained "to form a more perfect Union." It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not? But the perpetuity and indissolubility of the Union, by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Under the Articles of Confed- eration, each State retained its sovereignty, freedom, and inde- pendence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that "the people of each State compose a State, having its own government, and en- dowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States."^ Not only therefore can there be no loss of separate and independent autonomy to the States, through their union and under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all of its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of per- petual union and all the guarantees of republican government in the Union, attached at once to the State. The act which con- 1 County of Lane v. The State of Oregon, 7 Wallace, 76. 556 CASES ON CONSTITUTIONAL LAW. Bummated her admission into the Union was somfething more than a compact; it was the incorpofation of a new memher into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration, or revocation, except through revolution, or through consent of the States. Considered therefore as transacted under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legisla- ture intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unim- paired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the sup- pression of rebellion, and must have become a war for conquest and subjugation. Our conclusion therefore is, that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is. not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion. But in order to the exercise, by a State, of the right to sue in this court, there needs to be a State government, competent to represent the State in its relations with the National government, 80 far at least as the institution and prosecution of a suit is con- cerned. And it is by no means a logical conclusion, from the premises which we have endeavored to establish, that the governmental relations of Texas to the Union remained unaltered. Obligations often remain unimpaired, while relations are greatly changed. The obligations of allegiance to the State, and of obedience to her laws, subject to the Constitution of the United States, are binding upon all citizens, whether faithful or unfaithful to them; but the relations which subsist while these obligations are performed, are essentially different from those which arise when they are disre- garded and set at nought. And the same must necessarily be true of the obligations and relations of States and citizens to the Union. TEXAS V. WHITE. 557 "No one has been bold enough to contend that, while Texas was con- trolled by a government hostile to the United States, and in aiElia- tion with a hostile confederation, waging war upon the United States, senators chosen by her legislature, or representatives elected by her citizens, were entitled to seats in Congress; or that any suit, instituted in her name, could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion. These new relations imposed new duties upon the United States. The first was that of suppressing the rebellion. The next was that of re-establishing the broken relations of the State with the Union. The first of these duties having been performed, the next necessarily engaged the attention of the National goTcrnment. The authority for the performance of the first had been found in the power to suppress insurrection and carry on war; for the performance of the second, authority was derived from the obliga-r tion of the United States to guarantee to eveiy State in the Union a republican form of government. The latter, indeed, in the case of a rebellion which involves the government of a State, and for the time excludes the National authority from its limits, seems to be a necessary complement to the former. Of this, the case of Texas furnishes a striking illustration. When ■the war closed there was no government in the State except that which had been organized for the purpose of waging war against the United States. That government immediately disappeared. The chief functionaries left the State. Many of the subordinate officials followed their example. Legal responsibilities were an- nulled or greatly impaired. It was inevitable that great confusion should prevail. If order was maintained, it was where the good sense and virtue of the citizens gave support to local acting magis- trates, or supplied more directly the needful restraints. A great social change increased the difficulty of the situation. Slaves, in the insurgent States, with certain local exceptions, had been declared free by the Proclamation of Emancipation; and whatever questicms might be made as to the effect of that act, under the Constitution, it was clear, from the beginning, thait its practical operation, in connection with legislative acts of like tendency, must be complete enfranchisement. Wherever the Na- tional forces obtained control, the slaves became freemen. Sup- port to the acts of Congress and the proclamati'on of the President, 558 CASES ON CONSTITUTIONAL LAW. concerning slaves, was made a condition of amnesty^ by President Lincoln, in December, 1863, and by President Johnson, in May, 1865.^ And emancipation was confirmed, rather than ordained, in the insurgent States, by the amendment to the Constitution prohibiting slavery throughout the Union, which was proposed by Congress in February, 1865, and ratified, before the close of the following autumn, by the requisite three-fourths of the States.' The new freemen necessarily became part of the people, and the people still constituted the State; for States, like individuals, retain their identity, though changed to some extent in their constituent elements. And it was the State, thus constituted, which was now entitled to the benefit of the constitutional guarantee. There being then no government in Texas in constitutional re- lations with the Union, it became the duty of the United States to provide for the restoration of such a governilient. But the restora- tion of the government which existed before the rebellion, without a new election of officers, was obviously impossible; and before any such election could be properly held, it was necessary that the old Constitution should receive such amendments as would con- form its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State. In the exercise of the power conferred by the guarantee clause, as in the exercise of every other constitutional power, a discretion in the choice of means is necessarily allowed. It is essential only that the means must be necessary and proper for carrying into execution the power conferred, through the restoration of the State to its constitutional relations, under a republican form of government, and that no acts be done, and no authority exerted, which is either prohibited or unsanctioned by the Constitution. It is not important to review, at length, the measures which have been talcen, under this power, by the executive and legislative departments of the National government. It is proper, however, to observe that almost immediately after the cessation of organ- ized hostilities, and while the war yet smouldered in Texas, the President of the United States issued his proclamation appointing a provisional governor for the State, and providing for the assem- bling of a convention, with a view to the re-establishment of a republican government, under an amended constitution, and to the restoration of the State to her proper constitutional relations. A convention was accordingly assembled, the constitution amended, 1 13 stats, at Large, 737. a lb., 774-775. 2 lb., 758. ' TEXAS V. WHITE. 559 elections held, and a State government, acknowledging its obliga- tions, to the Union, established. Whether the action then taken was, in all respects, warranted by the Constitution, it is not now necessary to determine. The power exercised by the President was supposed, doubtless, to be derived from his constitutional functions, as commander-in-chief; and, so long as the war continued, it cannot be denied that he might insti- tute temporary government within insurgent districts, occupied by the National forces> or take measures, in any State, for the restora- tion of State government faithful to the Union, employing, how- ever, in such efforts, only such means and agents as were author- ized by constitutional laws. But the power to carry into effect the clause of guarantee is pri- marily a legislative power, and resides in Congress. "Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government. Congress must necessarily decide what government is established in the State, before it can determine whether it is republican or not." This is the language of the late Chief Justice, speaking for this court, in a case from Rhode Island,* arising from the organization of opposing governments in that State. And we think that the principle sanctioned by it may be applied, with even more pro- priety, to the case of a State deprived of all rightful government, by revolutionary violence; though necessarily limited to cases where the rightful government is thus subverted, or in imminent danger of being overthrown by an opposing government, set up by force within the State. The action of the President must, therefore, be considered as provisional, and, in that light, it seems to have been regarded by Congress. It was taken after the term of the 38th Congress had expired. The 39th Congress, which assembled in December, 1865, followed by the 40th Congress, which met in March, 1867, pro- ceeded, after long deliberation, to adopt various measures for reor- ganization and restoration. These measures were embodied in proposed amendments to the Constitution, and in the acts known as the Eeconstruotion Acts, which have been so far carried into effect, that a majority of the States which were engaged in the re- bellion have been restored to their constitutional relations, under forms of government, adjudged to be republican by Congress, * Luther v. Borden, 7 Howard, 42. 560 CASES ON OONSTITUTIONAL LAW. througli the admission of their "Senators and Bepreseatatiyes into the councils of the Union." Nothing in the case before us requires the court to pronounce judgment upon the constitutionality of any particular provision of these acts. But it is important to observe that these acts themselves show- that the governments, which had been established and had been in actual operation under executive direction, were recognized by Congress as provisional, as existing, and as capable of continuance. By the act of March 2, 1867,° the first of the series, these gov- ernments were, indeed, pronounced illegal and were subjected to military control, and were declared to be provisional only; and by the supplementary act of July 19, 1867, the third of the series, it was further declared that it was the true intent and meaning of the act of March 2, that the governments then existing were not legal State governments, and if continued, were to be continued subject to the military commanders of the respective districts and to the paramount authority of Congress. We do not inquire here into the constitutionality of this legislation so far as it relates to military authority, or to the paramount authority of Congress. It suffices to say, that the terms of the acts necessarily imply recog- nition of actually existing governments; and that in point of fact, the governments thus recognized, in some important respects, still exist. What has thus been said generally describes, with sufficient ac- curacy, the situation of Texas. A provisional governor of the State was appointed by the President in 1865; in 1866 a governor was elected by the people under the constitution of that year; at a subsequent date a governor was appointed by the commander of the district. Each of the three exercised executive functions and actu- ally represented the State in the executive department. In the ease before us each has given his sanction to the prosecu- tion of the suit, and we find no difficulty, without investigating the legal title of either to the executive office, in holding that the sanction thus given sufficiently warranted the action of the solicitor and counsel in behalf of the State. The necessary conclusion is that the suit was instituted and is prosecuted by competent authority. The question of jurisdiction being thus disposed of, we proceed to the consideration of the merits as presented by the pleadings and the evidence. '. . . On the whole case, therefore, our conclusion is that the State of 8 14 stats, at Large, 428. TEXAS V. WHITE. 561 Texas is entitled to the relief sought by lier bill, and a decree must be made accordingly. Mk. Justice Geiee dissenting. I regret tbat I am compelled to dissent from the opinion of the majority of the court on all the points raised and to be decided in this case. The first question in order is the Jurisdiction ,of the court to entertain this bill in behalf of the State of Texas. The original jurisdiction of this court can be invoked only by one of the United Sta,tes. The Territories have no such right con- ferred on them by the Constitution, nor have the Indian tribes who are under the protection of the military authorities of the gov- ernment. Is Texas one of these United States? Or was she such at the time this bill was filed, or since? This is to be decided as a political fact, not as a legal fiction. This court is bound to know and notice the public history of the nation. If I regard the truth of history for the last eight years, I cannot discover the State of Texas as one of these United States. I do not think it necessary to notice any of the very astute arguments which have been advanced by the learned counsel in thi^ ease, to find the definition of a State, when we have the subject treated in a clear and common-sense manner by Chief Justice Maxshall, in the case of Hepburn & Dundas v. Ellzey.® As the case is short, I hope to be excused for a full report of it, a,s stated and decided by the court. He says: "The question is, whether the plaintiffs, as residents of the Dis- trict of Columbia, can maintain an action in the Circuit Court of the United States for the District of Virginia. This depends on the act of Congress describing the jurisdiction of that court. The act gives jurisdiction to the Circuit Courts in cases between a citi- zen of the State in which the suit is brought, and a citizen of an- other State. To support the jurisdiction in this case, it must appear that Columbia is a State. On the part of the plaintiff, it has been urged that Columbia is a distinct political society, and is, therefore, a 'State' according to the definition of writers on general law. This is true; but as the act of Congress obviously uses the word 'State' in reference to that term as used in the Constitution, it be- comes necessary to inquire whether Columbia is a State in the sense of that instrument. The result of that examination i& a con- viction that the members of the American Confederacy only are the 36 6 2 Cranch, 452. Z62 CASES ON CONSTITUTIONAL LAW. States contemplated in the Constitution. The House of Repre- sentatives is to be composed of members chosen by the people of the several States, and each State shall have at least one repre- sentative. 'The Senate of the United States shall be composed of two senators from each State.' Each State shall appoint, for the election of the executive, a number of electors equal to its whole number of senators and representatives. These clauses show that the word 'State' is used in the Constitution as designating a mem- ber of the Union, and excludes from the term the signification attached to it by writers on the law of nations." Now we have here a clear and well-defined test by which we may arrive at a conclusion with regard to the questions of fact now to be decided. Is Texae a State, now represented by members chosen by the people of that State and received on the floor of Congress? Has she two senators to represent her as a State in the Senate of the United States? Has her voice been heard in the late election of President? Is she not now held and governed as a conquered province by mili- tary force? The act of Congress of March 2d, 1867, declares Texas to be a "rebel State," and provides for its government until a legal and republican State government could be legally established. It constituted Louisiana and Texas the fifth military district, and made it subject, not to the civil authority, but to the "military authorities of the United States." It is true that no organized rebellion now exists there, and the courts of the United States now exercise jurisdiction over the peo- ple of that province. But this is no test of the State's being in the Union; Dakota is no State, and yet the United States admin- ister justice there as they do in Texas. The Indian tribes, who are governed by military force, cannot claim to be States of the Union. Wherein does the condition of Texas differ from theirs? Now, by assuming or admitting as a fact the present status of Texas as a State not in the Union politically, I beg leave to protest against any charge of inconsistency as to judicial opinions hereto- fore expressed as a member of this court, or silently assented to. I do not consider myself bound to express any opinion judicially as to the constitutional right of Texas to exercise the rights and privi- leges of a State of this Union, or the power of Congress to govern her as a conquered province, to subject her to militaij domination, and keep her in pupilage. I can only submit to the fact as de- cided by the political position of the government; and I am not disposed to join in any essay to prove Texas to be a State of the Union, when Congress have decided that she is not. It is a question TARBLB'S CASE. 663 of fact, I repeat, and of fact only. Politieally, Texas is not a State in this Union. Whether rightMly out of it or not is a question not before the court. ... Mr. Justice Swatne: I concur with my brother Grier as to the incapacity of the State of Texas, in her present condition, to maintain an original suit in this court. The question, in my judg- ment, is one in relation to which this court is bound by the action of the legislative department of the government. Upon the merits of the case, I agree with the majority of my brethren. I am authorized to say that my brother Millbe unites with me in these views. TAEBLE'S CASE. 13 Wallace, 397. Decided 1871. Eeeob to the Supreme Court of Wisconsin. This was a proceeding on habeas corpus for the discharge of one Edward Tarble, held in the custody of a recruiting ofiBcer of the United States as an enlisted soldier, on the alleged ground that he was a minor, under the age of eighteen years at the time of his enlistment, and that he enlisted without the consent of his father. The writ was issued on the 10th of August, 1869, by a court com- missioner of Dane County, Wisconsin, an officer authorized by the laws of that State to issue the writ of habeas corpus upon the peti- tion of parties imprisoned or restrained of their liberty, or of per- sons on their behalf. It was issued in this case upon the petition of the father of Tarble, in which he alleged that his son, who had enlisted under the name of Frank Brown, was confined and re- strained of his liberty by Lieutenant Stone, of the United States aitny, in the city of Madison, in that State and county; that the cause of his confinement and restraint was that he had, on the 30th of the preceding July, enlisted, and been mustered into the mili- tary service of the United States; that he was under the age of eighteen years at the time of such enlistment; that the same was made without the knowledge, consent, or approval of the peti- tioner; and was, therefore, as the petitioner was advised and be- lieved, illegal; and that the petitioner was lawfully entitled to the custody, care, and services of his son. . . . 564 CASES ON CONSTITUTIONAL LAW. [The commissioner held that the prisoner was illegally detained by Lieutenant Stone, and ordered his discharge. Afterwaj-ds Lieu- tenant Stone had the proceedings taken to the Supreme Court of Wisconsin, where the order of the commissioner discharging the prisoner was affirmed. That judgment was then brought before the United States Supreme Court on a writ of error prosecuted by the United States.] Me. Justice Field, after stating the ease, delivered the opinion of the court, as follows: — The important question is presented by this case, whether a State court commissioner has jurisdiction, upon habeas corpus, to inquire into the validity of the enlistment of soldiers into the mili- tary service of the United States, and to discharge them from such service when, in his judgment, their enlistment has not been made in conformity with the laws of the United States. The question presented may be more generally stated thus: Whether any judicial officer of a State has jurisdiction to issue a writ of habeas corpus, or to continue proceedings under the writ when issued, for the dis- charge of a person held under the authority, or claim and color of the authority, of the United States, by an officer of that govern- ment. For it is evident, if such jurisdiction may be exercised by any judicial officer of a State, it may be exercised by the court commissioner within the county for which he is appointed; and if it may be exercised with reference to soldiers detained in the mili- tary service of the United States, whose enlistment is alleged to have been illegally made, it may be exercised with reference to per- sons employed in any other department of the public service when their illegal detention is asserted. It may be exercised in all cases where parties are held under the authority of the United States, whenever the invalidity of the exercise of that authority is af&rmed- The jurisdiction, if it exist at all, can only be limited in its appli- cation by the legislative power of the State. It may even reach to parties imprisoned under sentence of the National courts, after regular indictment, trial, and conviction, for offenses against the laws of the United States, As we read the opinion of the Supreme Court of Wisconsin in this case, this is the claim of authority as- serted by that tribunal for itself and for the judicial officers of that State. It does, indeed, disclaim any right of either to interfere with parties in custody, under judicial sentence, when the National court pronouncing sentence had jurisdiction to tiy and punish the offenders, but it asserts, at the same time, for itself and for each of TARBLE'S CASE. 665 those officers, the right to determiBe, ■upon habeas corpus, ia all eases, whether that court ever had such jurisdiction. . . . It is evident, as said by this court when the case of Booth was finally brought before it, if the power asserted by that State court ever existed, no oflEense againet the laws of the United States could be punished by their own tribunals, without the permission and according to the judgment of the courts of the State in which the parties happen to be imprisoned; that if that power existed in that State court, it belonged equally to every other State court in the Union where a prisoner was within its territorial limits; and, as the different State courts could not always agree, it would often happen that an act, which was admitted to be an offense and justly punishable in one State, would be regarded as innocent and even praiseworthy in another, and no one could suppose that a govern- ment, which had hitherto lasted for seventy years, "enforcing its laws by its own tribunals, and preserving the union of the States, could have lasted a single year, or fulfilled the trusts committed to it, if offenses against its laws could not have been punished with- out the consent of the State in which the culprit was found/' . . . [Here follows an extended discussion of Ableman v. Booth and The United States v. Booth, 21 Howard, 506.] It is in the consideration of this distinct and independent char- acter of the government of the United States, from that of the government of the several States, that the solution of the question presented in this ease, and in similar cases, must be found. There are within the territorial limits of each State two governments, re- stricted in their spheres of action, but independent of each other, and supreme within their respective spheres. Each has its sep- arate departments; each has its distinct 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 gov- ernments in each State stand in their respective spheres of action in the same independent relation to each other, except in one par- ticular, that they would if their authority embraced distinct ter- ritories. That particular consists in the supremacy of the authority of the United States when any conffict arises between the two governments. The Constitution and the laws passed ^n pursuance of it, are declared by the Constitution itself to be the supreme law of the land, and the judges of every State are bound thereby, "any- thing in the constitution or laws of any State to the contrary not- withstanding." Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of 566 CASES ON CONSTITUTIONAL LAW. their asserted authorities, those of the National government must have supremacy 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 decision by the National tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments. "The Constitution," as said by Mr. Chief Justice Taney, "was not framed merely to guard the States against danger from abroad, but chiefly to secure union and harmony at home; and to accomplish this end it was deemed necessary, when the Constitution was framed, 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, 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." And the judicial power conferred extends to all cases arising under the Constitution, and thus embraces every legis- lative act of Congress, whether passed in pursuance of it, or in disregard of its provisions. The Constitution is 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 character of the two governments, within their respective spheres of action, it follows that neither can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National government to preserve its rightful su- premacy in cases of conflict of authority. In their laws, and mode of enforcement, neither is responsible to the other. How their respective laws shall be enacted; how they shall be carried into execution; and in what tribunals, or by what officers; and how much discretion, or whether any at all shall be vested in their officers, are matters subject to their own control, and in the regula- tion of which neither can interfere with the other. Now, among the powers assigned to the National government, is the power "to raise and support armies," and the power "to provide for the government and regulation of the land and naval forces." The execution of these powers falls within the line of its duties; and its control over the subject is plenary and exclusive. It can determine, without question from any State authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken, the compensation he shall TARBLE'S CASE. 567 be allowed, and the service to which he shall be assigned. And it can provide the rules for the government and regulation of the forces after they are raised, define what shall constitute military ofEenses, and prescribe their punishment. No interference with the execution of this power of the National government in the formation, organization, and government of its armies by any State officials could be permitted without greatly impairing the effi- ciency, if it did not utterly destroy, this branch of the public ser- vice. Probably in every county and city in the several States there are one or more officers authorized by law to issue writs of habeas corpus on behalf of persons alleged to be illegally restrained of their liberty; and if soldiers could be taken from the army of the United States, and the validity of their enlistment inquired into by any one of these officers, such proceeding could be taken by all of them, and no movement could be made by the National troops without their commanders being subjected to constant annoyance and embarrassment from this source. The experience of the late rebellion has shown us, that, in times of great popular excitement, there may be found in every State large numbers ready and anxious to embarrass the operations of the government, and easily per- suaded to believe every step taken for the enforcement of its authority illegal and void. Power to issue writs of habeas corpus for the discharge of soldiers in the military service, in the hands of parties thus disposed, might be used, and often would be used, to the great detriment of the public service. In many exigencies the measures of the National government might in this way be entirely bereft of their efficacy and value. An appeal in such cases to this court, to correct the erroneous action of these officers, would afford no adequate remedy. Proceedings on habeas corpus are summary, and the delay incident to bringing the decision of a State officer, through the highest tribunal of the State, to this court for review would necessarily occupy years, and in the mean- time, where the soldier was discharged, the mischief would be ac- complished. It is manifest that the powers of the National govern- ment could not be exercised with energy and efficiency at all times, if its acts could be interfered with and controlled for any period by officers or tribunals of another sovereignty. It is true similar embarrassment might sometimes be occasioned, though in a less degree, by the exercise of the authority to issue the writ possessed by judicial officers of the United States, but the ability to provide a speedy remedy for any inconvenience following from this source would always exist with the National legislature. State judges and State courts, authorized by laws of their States 568 CASES ON CONSTITUTIONAL LAW. f issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government. If such fact appear upon the application the writ should be refused. If it do not appear, the judge or court issuing the writ has a right to inquire into the cause of imprisonment and ascertain by what authority the person is held within the limits of the State; and it is the duty of the marshal, or other officer having the custody of the prisoner, to give, by a proper return, information in this respect. His return should be sufficient, in its detail of facts, to show distinctly that the imprisonment is under the au- thority, or claim and color of the authority, of the United States, and to exclude the suspicion of imposition or oppression on his part. And the process or orders, under which the prisoner is held^ should be produced with the return and submitted to inspection, in order that the court or judge issuing the writ may see that the prisoner is held by the officer, in good faith, under the authority OT claim and color of the authority, of the United States, and not under the mere pretence of having such authority. This right to inquire by process of habeas corpus, and the duty of the officer to make a return, "grows necessarily," says Mr. Chief Justice Taney, "out of the complex Character of our government and the existence of two distinct and separate sovereignties within the same territorial space, each of them restricted in its power, and each within its sphere of action, prescribed by the Constitution of the United States, independent of the other. But, after the re- turn is made, and the State judge or court judicially apprised that the party is in custody under the authority of the United States, they can proceed no further. They then knOw that the prisoner is within the dominion and jurisdiction of another government, and that neither the writ of habeas corpus nor any other process issued under State authority can pass over the line of division be- tween the two sovereignties. He is then within the dominion and exclusive jurisdiction of the United States. If he has committed an offense against their laws, their tribunals alone can punish him. If he is wrongfully imprisoned, their judicial tribunals can release him and afford him redress." Some attempt has been made in adjudications, to which our at- tention has been called, to limit the decision of this court in Able- man V. Booth, arid The United States v. Booth, to cases where a prisoner is held in custody under undisputed lawful authority of TARBLE'S CASEI. 569 the United States, as distinguislied from his imprisonment under claim and color of such authority. But it is evident that the deci- sion does not admit of any such limitation. It would have been unnecessary to enforce, by any extended reasoning, such as the Chief Justice uses, the position that when it appeared to the judge or officer issuing the writ, that the prisoner was held under undis- puted lawful authority, he should proceed no further. 'No Federal judge even could, in such case, release the party from imprison- ment, except upon bail when that was allowable. The detention being by admitted lawful authority, no judge could set the pris- oner at liberty, except in that way, at any stage of the proceeding. All that is meant by the language used is, tliat the State judge or State court should proceed no further when it appears, from the application of the party, or the return made, that the prisoner is held by an officer of the United States under what, in truth, pur- ports to be the authority of the United States; that is, an author- ity, the validity of which is to be determined by the Consitutioh and laws of the United States. If a party thus held be illegally imprisoned it is for the courts or judicial officers of the United States, and those courts or officers aloiie, to grant him release. This limitation upon the power of State tribunals and State officers furnishes no just ground to apprehend that the liberty of the citizen will thereby be endangered. The United States are as much interested in protecting the citizen from illegal restraint under their authority, as the several States are to protect him from the like restraint under their authority, and are no more likely to tolerate any. oppression. Their courts and judicial officers are clothed with the power to issue the writ of habeas corpus in all cases, where a party is illegally restrained of his liberty by an o&cet of the United States, whether such illegality consist in the char- acter of the process, the authority of the officer, or the invalidity of the law under which he is held. And there is no just reason to believe that they will exhibit any hesitation to exert their power, when it is properly invoked. Certainly there can be no ground for supposing that their action will be less prompt and efficient in such cases than would be that of State tribunals and State officers.^ It follows, from the views we have expressed, that the court commissioner of Dane County was without jurisdiction to issue the writ of habeas corpus for the discharge of the prisoner in this case, it appearing, upon the application presented to him for the writ, that the prisoner was held by an officer of the United States, 1 In the matter of Severy, 4 Clifford. In the matter of Keeler, Hemp- stead, 306. 570 CASES ON CONSTITUTIONAL LAW, under claim and color of the authority of the United States, as an enlisted soldier mustered into the military service of the National government; and the same information was imparted to the com- missioner by the return of the officer. The commissioner was, both by the application for the writ and the return to it, apprised that the prisoner was within the dominion and jurisdiction of another government, and that no writ of habeas corpus issued by him could pass over the line which divided the two sovereignties. The conclusion we have reached renders it unnecessary to con- sider how far the declaration of the prisoner as to his age, in the oath of enlistment, is to be deemed conclusive evidence on that point on the return to the writ. Judgment reversed. The Chief Justice, dissenting. I cannot concur in the opinion just read. I have no doubt of the right of a State court to in- quire into the jurisdiction of a Federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction. If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry. I have still less doubt, if possible, that a writ of habeas corpus may issue from a State court to inquire into the validity of im- prisonment or detention, without the sentence of any court what- ever, by an officer of the United States. The State court may err; and if it does, the error may be corrected here. The mode has been prescribed and should be followed. To deny the right of State courts to issue the writ, or, what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large number of cases; and, I am thoroughly persuaded, was never within the contemplation of the Convention which framed, or the people who adopted, the Constitution. That instrument expressly declares that "the privilege of the writ of habeas corpus shall not be suspended, unless when, in case of rebellion or invasion, the public safety may require it." EX PARTE SIEBOLX). 671 Ex Pahte SIEBOLD. 100 U. S., 371. Decided 1879. Petition for writ of habeas corpus. The facts are stated in the opinion of the court. ... Mb. Justice Bradley delivered the opinion of the court. The petitioners in this case, Albert Siebold, "Walter Tucker, Martin C. Burns, Lewis Coleman, and Henry Bowers, were judges of election at different voting precincts in the city of Baltimore, at the election held in that city, and in the State of Maryland, on the fifth day of November, 1878, at which representatives to the Forty-sixth Congress were voted for. At the November Term of the Circuit Court of the United States for the District of Maryland, an indictment against each of the petitioners was found in said court, for offenses alleged to have been committed by them respectively at their respective precincts whilst being judges of election; and upon which indictments they were severally tried, convicted, and sentenced by said court to fine and imprisonment. They now apply to this court for a writ of habeas corpus to be relieved from imprisonment. . . . These indictments were framed partly under Sect. 5515 and partly under Sect. 5523 of the Eevised Statutes of the United States; and the principal questions raised by the application are, whether those sections, and certain sections of the title of the Eevised Statutes relating to the elective franchise, which they are intended to enforce, are within the constitutional power of Con- gress to enact. If they are not, then it is contended that the Cir- cuit Court has no jurisdiction of the cases, and that the convic- tions and sentences of imprisonment of the several petitioners were illegal and void. . . . The peculiarity of the case consists in the concurrent authority of the two sovereignties. State and National, over the same sub- ject-matter. This, however, is not entirely without a parallel. The regulation of foreign and interstate commerce is conferred by the Constitution upon Congress. It is not expressly taken away from the States. But where the subject matter is one of a national char- acter, or one that requires a uniform rule, it has been held that the power of Congress is exclusive. On the contrary, where neither of these circumstances exist, it has been held that State regulations are not unconstitutional. In the absence of congressional regula- tion, which would be of paramount authority when adopted, they 573 CASES ON CONSTITUTIONAL LAW. are valid and binding. . . . [Here follows a discussion of Cooley V. Board of Wardeiis of Port of Philadelphia, 13 How- ard, 299.] So in the case of laws for regulating the elections of repre- sentatives to Congress. The State may make regulations on the subject; Congress may make Regulations on the same subject, or may alter or add to those already made. The paramount character of those made by Congress has the effect to supersede those made by the State, so far as the two are inconsistent, and no farther. There is no such conflict between them as to prevent their form- ing a harmonious system perfectly capable of being administered and carried out as such. As to the supposed conflict that may arise between the officers appointed by the State and national governments for superintend- ing the election, no more insuperable difficulty neeid arise than in the application of the regulations adapted by' each respectively. The regulations of Congress being constitutionally paramount, the duties imposed thereby iipon the officers of the United States, so far as they have respect to the same matters, must necessarily be paramount to those to be performed by the officers of the State. If both cannot be performed, the latter are pro tanto superseded and cease to be duties. If the power of Congress over the subject is supervisory and paramount, as we have seen it to be, and if officers or agents are created for carrying out its regulations, it follows as a necessary consequence that such officers and agents must have the requisite authority to act without obstruction or interference from the officers of the State. No greater subordina- tion, in kind or degree, exists in this case than in any other. It exists to the same extent between the different officers appointed by the State, when the State alone regulates the election. One officer cannot interfere with the duties of another, or obstruct or hinder him in the performance of them. Where there is a disposi- tion to act harmoniously, there is no danger of disturbance be- tween those who have different duties to perform. When the rightful authority of the general government is once conceded and acquiesced in, the apprehended difficulties will disappear. Let a spirit of national as well as local patriotism once prevail, let un- founded jealousies cease, and we shall heai* no more about the impossibility of harmonious action between the national and State governments in a matter in which they have a mutual interest. As to the supposed incompatibility of independent sanctions and punishments imposed by the two governments, for the en- forcement of the duties required of the officers of election, and tot EX PARTE SIEBOLQ. 573 tliei/ protection in the perforjaiance of those duties, the same con- Kderations apj^ly. While the State will retain the power oi en- forcing Slick of its own regulations as are not superseded by those adopted by Congress, it cannot he disputed that if Congress has power to make reflations it must have the power to enforce them, not only by punishing the delinquency of officers appointed by the United States, but by isestraining and punishing those who attempt to interfere with them in the performance of their duties; and if, as we have shown, Congress may revise existing regulations, and add to or alter the sanie as far as it deem^s expedient, there can be as little question that it may impose additional penalties for the prevention of fraiids committed by thp State officers in the elec- tions, or for their violation of any duty relating thereto, whether arising from the common law or frpm any other law, State or na- tional. Wliy not? Penalties for fraud and delinquency are part of the regulations belonging to the subjept. If Congress, by its power to make or alter the regulations, has a general supervisory power over the whole subject, what is there to preclude it from imposing additional sanctions and penalties to prevent such fraud and d&- linquency? Jt is objected that Congress has no power to enforce State laws or to punish State officers, and especially has no power to punish them for violating the laws of their own State. As a general propo- sition, this is ufidoubtedly true; but when, in the performance of their functions, State officers are called .upon to fulfill duties which they owe to the United States as well as to the State, has the former no means of compelling such fulfilment? Yet that is the case here. It is the duty of the ^States to elect representatives to Congress. The due and fair election of these representatives is of vital importance to the United States. The, government of the United States is no less concerned in the transaction than the State government is. It certainly is not bound to stand by as a passive spectator, when duties are violated and outrageous frauds are com- mitted. It is directly interested in the faithful performance, by the officers of election, of their respective du.ties. Those duties are owed as well to the United States as to the State. This neces- sarily follows frofli the mixed character .of the transaction. State and national. A violation of duty is an offense against the United States, for which the offender is justly amenable to that govern- ment. No official position can shelter him from this responsibility. In view of the fact that Congress has plenary and paramount juris- diction over the whole snbject, it seems almost absurd to sa,y that an officer who receives or has custody of the ballots given for a 674 CASES ON CONSTITUTIONAL LAW. representative owes no duty to the national government which Congress can enforce; or that an officer who stuffs the ballot-box cannot be made amenable to the United States. If Congress has not, prior to the passage of the present laws, imposed any penalties to prevent and punish frauds and violations of duty committed by ofScers of election, it has been because the exigency has not been deemed sufficient to require it, and not because Congress had not the requisite power. The objection that the laws and regulations, the violation of which is made punishable by the acts of Congress, are State laws, and have not been adopted by Congress, is no sufficient answer to the power of Congress to impose punishment. It is true that Congress has not deemed it necessary to interfere with the duties of the ordinary officers of election, but has been content to leave them as prescribed by State laws. It has only created additional sanctions for their performance, and provided means of supervision in order more effectually to secure such performance. The im- position of punishment implies a prohibition of the act punished. The State laws which Congress sees no occasion to alter, but which it allows to stand, are in effect adopted by Congress. It simply demands their fulfillment. Content to leave the laws as they are, it is not content with the means provided for their enforcement. It provides additional means for that purpose; and we think it is entirely within its constitutional power to do so. It is simply the exercise of tlie power to make additional regulations. That the duties devolved on the officers of election are duties which they owe to the United States as well as to the State, is further evinced by the fact that they have always been so regarded by the House of Eepresentatives itself. In most cases of contested elections, the conduct of these officers is examined and scrutin- ized by that body as a matter of right; and their failure to per- form their duties is often made the ground of decision. Their conduct is justly regarded as subject to the fullest exposure; and the right to examine them personally, and to inspect all their proceedings and papers, has always been maintained. This could not be done, if the officers were amenable only to the supervision of the State government which appointed them. Another objection made is, that, if Congress can impose penal- ties for violation of State laws, the officer will be made liable to double punishment for delinquency, — at the suit of the State, and at the suit of the United States. But the answer to this is, that each government punishes for violation of duty to itself only. ^Tiere a person owes a duty to two sovereigns, he is amen- EX PARTE SIEBOLD. 575 able to both for its performance; and either may call him to account. Whether punishment inflicted by one can be pleaded in bar to a charge by the other for the same identical act, need not now be decided; although considerable discussion bearing upon the subject has taken place in this court, tending to the conclusion that such a plea cannot be sustained. In reference to a conviction under a State law for passing coun- terfeit coin, which was sought to be reversed on the ground that Congress had jurisdiction over that subject, and might inflict punishment for the same offense, Mr. Justice Daniel, speaking for the court, said: "It is almost certain that, in the benignant spirit in which the institutions both of the State and Federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other for acts essentially the same, — unless, indeed, this might occur in instances of peculiar enormity, or where the public safety demanded extraordinary rigor. But, were a contrary course of policy or action either probable or usual, this would by no means justify the conclusion that offenses falling within the competency of different authorities to restrain or punish them would not properly be subjected to the conse- quences which those authorities might ordain and affix to their perpetration." Fox v. The State of Ohio, 5 How., 410. The same judge, delivering the opinion of the court in the case of United States v. Marigold (9 How., 569) where a conviction was had under an act of Congress for bringing counterfeit coin into the country, said, in reference to Fox's Case: "With the view of avoiding conflict between the State and Federal jurisdictions, this court, in the case of Fox v. State of Ohio, have taken care to point out that the same act might, as to its character and tendencies, and the consequences it involved, constitute an offense against both the State and Federal governments, and might draw to its commission the penalties denounced by either, as appro- priate to its character in reference to each. We hold this dis- tinction sound;" and the conviction was sustained. The subject came up again for discussion in the case of Moore v. State of Illinois (14 id., 13), in which the plaintiff in error had been con- victed under a State law for harboring and secreting a negro slave, which was contended to be properly an offense against the United States under the fugitive-slave law of 1793, and not an offense against the State. The objection of double punishment was again raised. Mr. Justice Grier, for the court, said: "Every citizen of the United States is also a citizen of a State or a Ter- 576 CASES ON CONSTITUTIONAL LAW. ritory. He may be said to owe allegiancp to two povejseigBS, 3ad may be liable to punisliiBent for an infraction of the l^ws of either. The same act may be an offense or transgisession of jtie laws of both." Substantially the same views are expressed in United 3taj^s V. Cruikshank (92 U. S-, 542), referring to these cases; and we do not well see how the doctrine they contain can be contro- verted. A variety of instances may be readily snggestfid, in which it would be necessary or proper to apply it. Suppose, for example, a State judge having power uajder the naturalization laiys to admit aliens to citizenship should utter false certificates of naturaliza- tion, can it be doubted that he could be indicted u]jder the act of Congress providing penalties for that offense, even though he might also, under the State laws, be indictable for forgery, as well as liable to impeachment? So, if Congress, as it might, should pass a law fixing the standard of weights and measures, and im- posing a penalty for sealing false weights and false measures, but leaving to the States the matter of inspecting and sealing those used by the people, would not an offender, filling the ofQce of sealer under a State law, be amenable to the United States as well as to the State? If the ofiieers of election, in elections for i;epresentatives, owe a duty to the United States, and are amenable to that government as well as to the State, — as we think they are,'— then, according to the cases just cited, there is no reason why each should not establish sanctions for the performance of the duty owed 1x) itself, though referring to the same act. To maintain the contrary proposition, the case of Common- wealth of Kentucky v. Dennison (24 How., 66) is confidently relied on by the petitioners' counsel. But t^ere. Congress had ipaposed a duty upon the governor of the State which it had no authority to impose. The enforcement of the clause in the Constitution requiring the delivery of fugitives from service was held to belong to the government of the United States, to be effected by its own agents; and Congress had no authority to require the governor of a State to execute this duty. We have thus gone over the principal reasons of a special char- acter relied on by the petitioners for maintaining the general proposition for which they contend; namely, that in the regula- tion of elections for representatives the national and .State gov- ernments cannot co-operate, but must act exclusively of each other; so that, if Congress assumes to regulate the suhje^ at all, it must assume exclusive control of the whole subject. The more general reason assigned, to wit, that the nature of sovereignty EX PARTE SIEBOLD. 577 is such as to preclude the joint co-operation of two sovereigns, even in a matter in which they are mutually concerned, is not, in our jttdgment, of sufficient force to prevent concurrent and harmonious action on the part of the national and State governments in the election of representatives. It is at most an argument ab incon- veniente. There is nothing in the Constitution to forbid such co- operation in this case. On the contrary, as already said, we think it clear that the clause of the Constitution relating to the regula- tion of such elections contemplates such co-operation whenever Congress deems it expedient to interfere merely to alter cr add to existing regulations of the State. If the two governments had an entire equality of jurisdiction, there might be an intrinsic dif- ficulty in such co-operation. Then the adoption by the State government of a system of regulations might exclude the action of Congress. By first taking jurisdiction of the subject, the State would acquire exclusive jurisdiction in virtue of a well-known principle applicable to courts having co-ordinate jurisdiction over the same matter. But no such equality exists in the present case. The power of Congress, as we have seen, is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is e.xercised, and no farther, the regu- lations effected supersede those of the State which are incon- sistent therewith. As a general rule, it is no doubt expedient and wise that the operations of the State and national governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal ap- plication. It should never be made to override the plain and manifest dictates of the Constitution itself. We cannot yield to such a transcendental view of State sovereignty. The Constitu- tion and laws of the United States are the supreme laws of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity. There are very few subjects, it is true, in which our system of government, com- plicated as it is, requires or gives room for conjoint action between the State and national sovereignties. Generally, the powers given by the Constitution to the government of the United States are given over distinct branches of sovereignty from which the State governments, either expressly or by necessary implication, are ex- cluded. But in this case, expressly, and in some others, by im- plication, as we have seen in the case of pilotage, a concurrent jurisdiction is contemplated, that of the State, however, being 37 678 CASES ON CONSTITBTiaNAL LAW. subordinate to. that of the. Xlnited States, whereby all c[uestions of precedency is eliminated. In what we hare said, it must be remembered that we are deal- ing only with the subject of elections of representatives to Con- gress. If for its own convenience a State sees fit to elect State and county officers at the same time and in. cpnjunction with the election of representatives. Congress will not be thereby deprived of the right to make regulations in reference to the latter. We do not mean to say, however, that for any acts of the officers of election, having exclusive reference to. the, election of State or county officers, they will be amenable to Federal jurisdiction; nor do we understand that the enactments of Congress now under consideration have any application to such acts. It must also be remember-ed that we are dealing with the ques- tion of power, not of the expediency of any regulations which Congress has made. That is. not ■Hfithin the pale of our jurisdic- tion. In exercising the power, however, we are bound to presume that Congress has done so in a judicious, manner; that it haa endeavored to guard as far as possible against any unnecessary interference with State laws and regulations, with the duties of State officers, or with local prejudices. It could not act at all so as to accomplish any beneficial object in preventing frauds and violence, and securing the faithful performance of duty at the elections, without providing for the presence of officera and agents to caJTy its regulations into effect. It is. also, difficult to see how it could attain these objects without imposing proper sanctions and penalties against offenders. The views we have expressed seem to us to be founded on such plain and practical principles as hardly to need; any labored argu- ment in their support. We may mystify anything. But if we take a plain view of the words of the Constitution, and give to them a fair and obvious interpretation, we. cannot fail in most eases of coming to a clear understanding of its meaning. We shall not have far to seek. We shall find it on the surface, and not in the profound depths of speculation. The greatest difficulty in coming to a just- conclusion arises from mistaken notions with regard to the relations which sub- sist between the State and national governments. It seems to be often overlooked that a national constitution has been adopted in this country, establishing a real government therein, operating upon persons and territory and things; and 'which, moreover, is, or should be, as dear to every American citizen as his State gov- ernment is. Whenever the true conception of the nature of this EX PARTE SIEBOLD. 579 government is once conceded, no real difficulty will arise in the just interpretation of its powers. But if we allow ourselves to regard it as a hostile organization, opposed to the proper sov- ereignty and dignity of the State governments, we shall continue to he vexed with difficulties as to its jurisdiction and authority. Ho greater jealousy is required to he exercised towards this gov- ernment in reference to the preservation of our liberties, than is proper to be exercised towards the State governments. Its powers are limited in number, and clearly defined; and its action within the scope of those powers is restrained by a sufficiently rigid bill of rights for the protection of its citizens from oppression. The true interest of the people of this country requires that both the national and State governments should be allowed, without jealous interference on either side, to exercise all the powers which re- spectively belong to them according to a fair and practical con- struction of the Constitution. State rights and the rights of the United States should be equally respected. Both are essential to the preservation of our liberties and the perpetuity of our institutions. But in endeavoring to vindicate the one, we should not allow our zeal to nullify or impair the other. Several other questions bearing upon the present controversy have been Taised by the counsel of the petitioners. Somewhat akin to the argument which has been considered is the objection that the deputy marshals authorized by the act of Congress to be created and to attend the elections are authorized to keep the peace; and that this is a duty which belongs to the State authorities alone. It is argued that the preservation of peace and good order in so- ciety is not within the powers confided to the government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that government. We hold it to be an, incontrovertible principle, that the government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its laws and to execute its functions in all places does not derogate from the powers of the State to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be 580 CASES ON CONSTITUTIONAL LAW. executed at tlie same time. In that case, the words of the Con- stitution itself show which is to yield. "This Constitution, and all laws which shall he made in pursuance thereof, . . • shall be the supreme law of the land." This concurrent jurisdiction which the national government necessarily possesses to exercise its powers of sovereignty in all parts of the United States is distinct from that exclusive power which, by the first article of the Constitution, it is authorized to exercise over the District of Columbia, and over those places within a State which are purchased by consent of the legislature thereof, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings. There its jurisdiction is absolutely exclusive of that of the State, unless, as is sometimes stipulated, power is given to the latter to serve the ordinary process of its courts in the precinct acquired. Without the concurrent sovereignty referred to, the national government would be nothing but an advisory government. Its executive power would be absolutely nullified. Why do we have marshals at all, if they cannot physically lay their hands on persons and things in the performance of their proper duties? What funotions can they perform, if they cannot use force? In executing the processes of the courts, must they call on the nearest constable for protection? Must they rely on him to use the requisite compulsion, and to keep the peace whilst they are soliciting and entreating the parties and bystanders to allow the law to take its course? This is the necessary conse- quence of the positions that are assumed. If we indulge in such impracticable views as these, and keep on refining and re-refining, we shall drive the national government out of the United States, and relegate it to the District of Columbia, or perhaps to some foreign soil. We shall bring it back to a condition of greater help- lessness than that of the old confederation. The argument is based on a strained and impracticable view of the nature and powers of the national government. It must exe- cute its powers, or it is no government. It must execute them 01) the land as, well as on the sea, on things as well as on persons. And, to do this, it must necessarily have power to command obedi- ence, preserve order, and keep the peace; and no person or nower in this land has the right to resist or question its authoritv so long as it keeps within the bounds of its jurisdiction. Without specifying other instances in which this power to preserve order and keep the peace unquestionably exists, take the very case in hand. The counsel for the petitioners concede that Conoress mav EX PARTE SIEBOLD. 581 if it sees fit, assume the entire control and regulation of the elec- tion of representatives. This would necessarily involye the ap- pointment of the places for holding the polls, the times of voting, and the ofiicers for holding the election; it would requirfe the regu- lation of the duties to be performed, the custody of the ballots, the mode of ascertaining the result, and every other matter relating to the subject. Is it possible that Congress could not, in that case, provide for keeping the peace at such elections, and for ar- resting and punishing those guilty of breaking it? If it could not, its power would be but a shadow and a name. But, if Con- gress can do this, where is the difference in principle in its making provision for securing the preservation of the peace, so as to give to every citizen his free right to vote without molestation or injury, when it assumes only to supervise the regulations made by the State, and not to supersede them entirely? In our judg- ment, there is no difference; and, if the power exists in the one ease, it exists in the other. The next point raised is, that the act of Congress proposes to operate on officers or persons authorized by State laws to perform certain duties under them, and to require them to disobey and dis- regard State laws when they come in conflict with the act of Congress; that it thereby of necessity produces collision, and is therefore void. This point has been already fully considered. We have shown, as we think, that, where the regulations of Congress conflict with those of the State, it is the latter which are void, and not the regulations of Congress; and that the laws of the State, in so far as they are inconsistent with the laws of Congress on the same subject, cease to have effect as laws. . . , The doctrine laid down at the close of counsel's brief, that the State and national governments are co-ordinate and altogether equal, on which their whole argument, indeed, is based, is only partially true. The true doctrine, as we conceive, is this, that whilst the States are really sovereign as to all matters which have not been granted to the jurisdiction and control of the United States, the Consti- tution and constitutional laws of the latter are, as we have already said, the supreme law of the land; and, when they conflict with the laws of the States, they are of paramount authority and obli- gation. This is the fundamental principle on which the author- ity of the Constitution is based; and unless it be conceded in prac- tice, as well as theory, the fabric of our institutions, as it was con- templated by its founders, cannot stand. The questions involved have respect not more to the autonomy and existence of the States, 682 CASES ON CONSTITUTIONAL LAW. than to tlie continued existence of the United States as a govern- ment to which every American citizen may look for security and protection in every part of the land. We think that the cause of commitment in these cases was law- ful, and that the application for the writ of habeas corpus must be denied. Application denied. Me. Justice Cliffoed and Mk. Justice Field dissented. IToTE. — Questions as to the relation of the Federal Govern- ment and the States have arisen most frequently in colmection with the judicial power, taxation, and the regulation of eom^ merce. On this point the cases included in chapters IV and XIV should be consulted, as well as the following cases under taxation (chap. II): McCuUoch v. Maryland, "Weston v. Charles- ton, License Tax Cases, and The Collector v. Day. Under the executive power see In re Neagle, and for a general discussion see Barron v. Baltimore. Among the many valuable discussions in periodicals the following are noteworthy: "The American Commonwealth: Changes in Its Eelation to the Nation," by Prof. John W. Burgess, Political Science Quarterly, I, 9 (1886); "Are the States Equal Under the Constitution?" by Prof. Wm. A. Dunning, Ibid., Ill, 425 (1888); "Eecent Centralizing Tendencies in the Supreme Court," by F. P. Powers, Ibid., V, 389 (1890); "A New Nation," by H. E. Bailey, Harvard Law Eeview, IX, 309 (1895). XIII. INTERNATIONAL RELATIONS.— INDIAN AF- FAIRS In 'The Ameeican IsrsuEAJsrcE OoMtANt t. CaNteb, 1 Petera, Sll (1828), Chief JusTtcfi Marshall said: "The course whicli the argument has taken, will require that, in deciding this qiiestioii, the court should take into view the relation in which riorida stands to the United States. "The constitution confers absolutely on the governnieiit of the tlnioil the powers of making war and of making treaties; conse- quently, that government possesses the power of acquiring terri- tory, either by conquest or by treaty. "The usage of the wotld is, if a ilation be not entirely subdued, to consider the holding of conquered territory as a, mere military occupation, until its fate shall be determined at the treaty, of peace. It it be cedied by the treaty, the acquisition is confirmed, and the ceded territory becomes a part bf the nation to which it is annexed, either on the terms stipulated in th6 treaty of cession, or on such as its new master shall impose. On such transfer of terri- tory, it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved, and new relations are created be- tween them and thie government which has acquired thdr terri- tory. The same act which transfers their country, transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals, re- mains in force until altered by the newly created power of the state. "On the 2d of February, 1819, Spain ceded Florida to the United States. The 6th article of the treaty of cession,^ contains the fol- lowing provision: "The inhabitants of the territories which his Catholic Majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States, as soon as may 1 i Statd. at Large, 252. 683 584 CASES ON CONSTITUTIONAL LAW. be consistent witK the principles of the federal constitution, and admitted to the enjoyment of the privileges, rights, and immunities of the citizens of the United States." "This treaty is the law of the landj and admits the inhabitants of Florida to the enjoyment of the privileges, rights, and immu- nities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipu- lation. They do not, however, participate in political power; they do not share in the government till Florida shall become a State. In the meantime, Florida continues to be a territory of the United States, governed by virtue of that clause in the constitution which empowers congress "to make all needful rules and regulations re- specting the territory or other property belonging to the United States." "Perhaps the power of governing a territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result necessarily from the facts that it is not within the Jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source whence the power is derived, the possession of it is unquestioned. In execution of it, congress, in 1823, passed "an act for the establishment of a terri- torial government in Florida,"* and on the 3d of March, 1823, passed another act to amend the act of 1822. Under this act, the territorial legislature enacted the law now under consideration. THE CHEKOKEE NATION v. THE STATE OF GEOEGIA. 5 Peters, 1. Decided 1831. This was an original bill filed in this court by the Cherokee Nation against the State of Georgia, and also a supplemental bill by the same complainant against the same defendant, upon which the complainant moved for a subpoena to the State, and also for a temporary injunction to restrain the State from enforcing the laws of Georgia within the territory alleged to belong exclusively to the complainants. As the decision of the court rested solely on the ground of want of jurisdiction, it is not deemed necessary to 2 3 Stats, at Large, 654. CHEROKEE NATION v. GEORGIA. , 685 state the contents of the bills, any further than they bear on that question. The bill set forth the complainants to be "the Cherokee Nation of Indians, a foreign state, not owing allegiance to the United States, nor to any State of this Union, nor to any prince, poten- tate, or state, other than their own." "That from time immemorial, the Cherokee Kation hare com- posed a sovereign and independent state, and in this character have been repeatedly recognized, and still stand recognized, by the United States, in the various treaties subsisting between their nation and the United States." And it proceeds to state when ■these were made, and their substance, and shows how certain laws of Georgia are repugnant thereto. On the day appointed for the hearing, the counsel for the com- plainants filed a supplemental bill, which states that since their bill, now submitted, was drawn, acts, demonstrative of the deter- mination of the State of Georgia to enforce her assumed authority over the complainants and their territory, property, and jurisdic- tion, have taken place, and it sets out those acts. . . . No counsel appeared for the State of Georgia. Marshall, C. J., delivered the opinion of the court. This bill is brought by the Cherokee nation, praying an injunc- tion to restrain the State of Georgia from the execution of certain laws of that State, which, as is alleged, go directly to annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the lands of the nation which have been assured to them by the United States in solemn treaties repeatedly made and still in force. . . . Before we can look into the merits of the case, a preliminary in- quiry presents itself. Has this court jurisdiction of the cause? The 3d article of the constitution describes the extent of the judicial power. The 2d section closes an enumeration of the eases to which it is extended, with "controversies" "between a State or the citizens thereof and foreign states, citizens, or subjects." A subsequent clause of the same section gives the supreme court orig- inal jurisdiction in all cases in which a State shall be a party. The party defendant may, then, unquestionably be sued in this court. May the plaintiff sue in it? Is the Cherokee nation a for- eign state in the sense in which that term is used in the consti- tution? The counsel for the plaintiffs have maintained the affirmative of this proposition with great earnestness and ability. So much 586 CASES ON CONSTITUTIONAL LAW. of the argument as waa intended to prove the character of the Cher- okees as a state, as a distinct political society, separated from others, capable of managing^ its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful. They. have been uniformly treated as a state from the settlement of our country. The numerous treaties made by them with the United States recognize them as a people capable of maintaining the relations of peace and war, of being responsible in their political character for any violation of their engagements, or for any aggression committed on the citizens of the United States by any individual of their community. Laws have been enacted in the spirit of these treaties. The acts of our government plainly recognize the Cherokee nation as a state, and the courts are bound by those acts. A question of much more difficulty remains. Do the Cherokees constitute a foreign state in the sense of the constitutioiu? The counsel have shown conclusively that they are not a State of the Union, and have insisted that individually they are aliens, not owing allegiance to the United States. An aggregate of aliens composing a state must, they say, be a foreign state. Each indi- vidual being foreign, the whole must be foreign. This argument is imposing, but we must examine it more closely before we yield to it. The Condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence. In the general, nations not owing a common allegiance are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the other. But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else. The Indian territory is admitted to form a part of the United States. In all our maps, geographical treatises, histories, and laws, it is so considered. In all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as Within the juris- dictional limits of the United States, subject to many of those re- straints which are imposed upon ova own citizens. They acknowl- edge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper; and the Chero- kees in particular were allowed by the treaty of Hopewell,^ which preceded the constitution, "to send a deputy of their choice, when- 1 7 Statutes at Large, 18. CHEROKEE NATION v. GEORGIA. 587 ever they think proper, to congress." Treaties were made with some tribes by the State of New York, under a then unsettled construction of the confederation, by which they ceded all their lands to that State, taking back a limited grant to themselves, in which they admit their dependence. Though the Indians are acknowledged to have an unquestionable and, therefore, unquestioned right to the land they occupy, until that right shall be extinguished by a voluntary cession to our gov- ernment; yet it may be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupil- age. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kind- ness and its power; appeal to it for relief to their wants; and ad- dress the President as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our terri- tory, and an act of hostility. These considerations go far to support the opinion that the framers of our constitution had not the Indian tribes in view, when they opened the courts of the Union to controversies between a State or the citizens thereof and foreign states. In considering this subject, the habits and usages of the Indians, in their intercourse with their white neighbors, ought not to be entirely disregarded. At the time the constitution was framed, the idea^of appealing to an American court of justice for an asser- tion of right or a redress of wrong, had, perhaps, never entered the mind of an Indian or his tribe. Their appeal was to the tomahawk, or to the government. This was well understood by the statesmen who framed the constitution of the United States, and might fur- nish some reason for omitting to enumerate them among the par- ties who might sue in the courts of the Union. Be this as it may, the peculiar relations between the United States and the Indians occupying our territory are such, that we should feel much difficulty in considering them as designated by the term foreign state, were there no other part of the constitution which might shed light on 5S3 CASES ON CONSTITUTIONAL LAW. the meaning of these words. But we think that in construing them, considerable aid is furnished by that clause in the 8th sec- tion of the 1st article, which empowers congress to "regulate com- merce with foreign nations, and among the several States, and with the Indian tribes." In this clause they are as clearly contradistinguished by a name appropriate to themselves, from foreign nations, as from the sev- eral States composing the Union. They are designated by a distinct appellation; and as this appellation can be applied to neither of the others, neither can the appellation distinguishing either of the others be in fair construction applied to them. The objects, to which the power of regulating commerce might be directed, are divided into three distinct classes — foreign nations, the several States, and Indian tribes. When forming this article, the conven- tion considered them as entirely distinct. We cannot assume that the distinction was lost in framing a subsequent article, unless there be something in its language to authorize the assumption. The counsel for the plaintiffs contend that the words "Indian tribes" were introduced into the article empowering congress to regulate commerce, for the purpose of removing those doubts in which the management of Indian affairs was involved by the lan- guage of the 9th article of the confederation. Intending to give the whole power of managing those affairs to the government about to be instituted, the convention conferred it explicitly, and omitted those qualifications which embarrassed the exercise of it as granted in the confederation. This may be admitted without weakening the construction which has been intimated. Had the Indian tribes been foreign nations, in the view of the convention, this exclusive power of regulating intercourse with them might have been, and most probably would have been, specifically given, in language indicating that idea, not in language contradistinguishing them from foreign nations. Congress might have been empowered "to regulate commerce with foreign nations, including the Indian tribes, and among the several States." This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations, and were yet desirous of mentioning them par- ticularly. It has also been said that the same words have not necessarily the same meaning attached to them when found in different parts of the same instrument; their meaning is controlled by the con- text. This is undoubtedly true. In common language, the same word has various meanings, and the peculiar sense in which it is used in any sentence is to be determined by the context. This may CHEROKEE NATION v. GEORGIA. 539 not be equally true with respect to proper names. Foreign na- tions, is a general term, the application of which to Indian tribes, when used in the American constitution, is at best extremely questionable. In one article, in which a power is given to be exercised in regard to foreign nations generally, and to the Indian tribes particularly, they are mentioned as separate in terms clearly contradistinguishing them from each other. We perceive plainly that the constitution, in this article, does not comprehend Indian tribes in the general term "foreign nations;" not, we presume, be- cause a tribe may not be a nation, but because it is not foreign to the United States. When, afterwards, the term "foreign states" is introduced, we cannot impute to the convention the intention to desert its former meaning, and to comprehend Indian tribes within it, unless the context force that construction upon us. We find nothing in the context, and nothing in the subject of the arti- cle, which leads to it. The court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state, in the sense of the constitution, and cannot maintain an action in the courts of the United States. A serious additional objection exists to the jurisdiction of the court. Is the matter of the bill the proper subject for judicial inquiiy and decision? It seeks to restrain a State from the forcible exercise of legislative power over a neighboring people, asserting their independence; their right to which the State denies. On several of the matters alleged in the bill, for example on the laws making it criminal to exercise the usual powers of self-government in their own country by the Cherokee nation, this court cannot interpose; at least in the form in which those matters are pre- sented. . That part of the bill which respects the land occupied by the Indians, and prays the aid of the court to protect their possession, may be more doubtful. The mere question of right might, perhaps, be decided by this court in a proper case with proper parties. But the court is asked to do more than decide on the title. The bill requires us to control the legislature of Georgia, and to restrain the exertion of its physical force. The propriety of such an interposition by the court may be well questioned. It savors too much of the exercise of political power to be within the proper province of the judicial department. But the opinion on the point respecting parties, makes it unnecessary to decide this question. If it be true that the Cherokee nation have rights, tliis is not 590 CASES ON CONSTITUTIONAL LAW. the tribunal in whicli those rights are to be asserted. If it be true that wrongs have been inflieted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future. The motion for an injunction is denied. [Justices Johnson and Baldwin delivered long concurring opinions. Jttstice Thompson delivered a dissenting opinion, in which Justice Story concurred.] Note. — "The political importance of the Cherokee case lay in the fact that its result was the first successful nullification, in its modern sense, of the laws of the United States." Alexander John- ston in Lalor's Cyclopedia, I, 394. WOECESTER v. THE STATE OF GEORGIA. 6 Peters, 515. Decided 1832. Error to the superior court for the county of Gwinnett in the State of Georgia. . . . [The plaintiff in error, a missionary from Vermont, residing within the limits of the Cherokee nation by permission of the United States, was arrested and sentenced to imprisonment under a law of the State of Georgia forbidding such residence without a license from the State.] Marshall, C. J., delivered the opinion of the court. This cause, in every point of view in which it can be placed, is of the deepest interest. The defendant is a State, a member of the Union, which has exercised the powers of government over a people, who deny its jurisdiction, and are under the protection of the United States. The plaintiff is a citizen of the State of Vermont, condemned to hard labor for four years in the penitentiary of Georgia under color of an act which he alleges to be repugnant to the constitution, laws and treaties of the United States. The legislative power of a State, the controlling power of the constitution and laws of the United S-tates, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved in the subject now to be considered. . . • [The first part of the opinion consists WORCESTER v. GEORGIA. 591 of a consideratioB of the jurisdiction of the court and a discussion of the relations of the Indian tribes with the goYemments of Great Britain, the Colonics and the United Staies.] The treaties and laws of the United States contemplate the In- dian territory as completely separated from that of the States; and provide that all intercourse with them shall he carried on ex- clusively by the government of the Union. Is this the rightful exercise of power, or is it usurpation? While these States were colonies, this power, in its utmost ex- tent, was admitted to reside in the crown. When our revolutionary struggle commenced, congress was composed of an assemblage of deputies acting under specific powers granted by the legislatures, or conventions of the several colonies. It was a great popular movement, not perfectly organized; nor were the respective pow- ers of those who were intrusted with the management of affairs accurately defined. The necessities of our situation produced a general conviction that those measures which concerned all must be transacted by a body in which the representatives of all were assembled, and which could command the confidence of all: con- gress, therefore, was considered as invested with all the powers of war and peace, and congress dissolved our connection with the mother country, and declared these united colonies to be independ-. ent States. Without any written definition of powers, they em- ployed diplomatic agents to represent the United States at the several courts of Europe; offered to negotiate treaties with them, and did actually negotiate treaties with France. From the same necessity, and on the same principles, congress assumed the man- agement of Indian affairs; first in the name of these united col-* onies; and> afterwards, in the name of the United States. Early attempts were made at negotiation> and to regulate trade with them. These not proving successful, war was carried on under the direction, and with the forces of the United States, and the efforts to make peace, by treaty, were earnest and incessant. The confederation found congress in the exercise of the same powers of peace and war, in our relations witji Indian nations, as with those of Europe. Such was the state of things when the confederation was adopted. That instrument surrendered the powers of peace and war to con- gress, and prohibited them to the States, respectively, unless a State be actually invaded, "or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of delay till the United States in oongress assembled can be consulted." This 592 CASES ON CONSTITUTIONAL LAW. instrument also gave the United States in congress assembled the sole and exclusive right of "regulating the trade and managing all the affairs with the Indians, not members of any of the States: provided, that the legislative power of any State within its own limits be not infringed or violated." The ambiguous phrases which follow the grant of power to the United States were so construed by the States of North Carolina and Georgia as to annul the power itself. The discontents and confusion resulting from these conflicting claims, produced repre- sentations to congress, which were referred to a committee, who made their report in 1787. The report does not assent to the con- struction of the two States, but recommends an accommodation, by liberal cessions of territory, or by an admission, on their part, of the powers claimed by congress. The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution. That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several States, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restrictions on their free actions. The shackles im- posed on this power, in the confederation, are discarded. The Indian nations had always been considered as distinct, in- dependent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time im- memorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the In- dians. The very term "nation," so generally applied to them, means "a people distinct from others." The constitution, by de- claring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the pre- vious treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well-understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense. Georgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those entertained WORCESTER v. GEORGIA. 693 hy her sister States, and ty the government of the United States. Various acts of her legislature have been cited in the argument, in- cluding the contract of cession made in the year 1803, all tending to prove her acquiescence in the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be extinguished by the TJnited States, with their consent; that their territory was separated from that of any State within whose chartered limits they might reside, by a boun- dary line, established by treaties; that, within their boundary, they possessed rights with which no State could interfere; and that the whole power of regulating the intercourse with them, was vested in the United States. A review of these acts, on the part of Georgia, would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her new series of laws, manifesting her abandonment of these opinions, appears to have commenced in December, 1838. In opposition to this original right, possessed by the undisputed occupants of every country; to this recognition of that right, which is evidenced by our history, in every change through which we have passed; is placed the charters granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others whom he could not remove and did not attempt to re- move, and the cession made of his claims by the treaty of peace. The actual state of things at the time, and all history since, ex- plain these charters; and the king of Great Britain, at the treaty of peace, could cede only what belonged to his crown. These newly asserted titles can derive no aid from the articles so often repeated in Indian treaties; extending to them, first, the protec- tion of Great Britain, and afterwards that of the United States. These articles are associated with others, recognizing their title to self-government. The very fact of repeated treaties with them recognizes it; and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence — its right of self-government, by associating with a stronger, and tak- ing its protection. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, with- out stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. "Trib- utary and feudatory states," says Vattel, "do not thereby cease to be sovereign and independent states, so long as self-government and sovereign and independent authority are left in the admin- istration of the state.-" At the present day, more than one state 38 594 CASES ON CONSTITXJTIONAL LAW. may be considered as kolding its ligtt of self-goTemment under the guarantee and protection of one or more allies.. The Cherokee nation, then, is a distinct comroxmity, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which th.e citizens of Georgia have no right to enter, but with the assent of the Chero- kees themselves, or in conformity with treaties and with the g.cts of congress. The whole intercourse between the United Staites and this nation, is, by our constitution, and laws, vested in tha government of the United States. The act of the State of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and tlie judgment a nullity. Can this court revise and reverse it? If the objection to the system of legislation, lately adopted hy the legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial operation, the objection, though complete, so far as respected mere right, would give this court no power over the subject- But it goes much, further. If the review which has been taken be correct, and we. think it is, the acte of Georgia are repugnant to the constitution, laws, and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation, of which, according to the settled principles of our constitution, are committed exclusively to the government, af the Union. They are in direct hostility with treaties, repeated in a succes- sion of years, which mark out the boundary that separates the Cherokee country from Georgia, guarantee to them all the land within their boundary, solemnly pledge the faith of the United States to restrain their citizens from, trespassing on it, and recog- nize the pre-existing power of the nation to govern itself. They are in equal hostility with the acts of congress for regu- lating this intercourse, and giving effect, to the. treaties. The forcible seizure and abduction of the- plaintiff in error, who was residing in the nation with its permission, and by authority of the President of the United States, is also a violation of the acts which authorize the chief magistrate to exercise this authority. Will (these powerful considerations avail the plaintiff in error? We think they will. He was seized, and forcibly carried away, while under guardianship of treaties guaranteeing the country in which he resided, and taking it under the. protection of the United States. He was seized while performing, under the sanction of the chief magistrate of the Union, those duties which the humane PONG TUB TING T. UNITED STATES. 595 poljey adopted by congress had reeomimended. He was appie- hended, tried, and condemned, under color of a law which has been shown to be repugnant to the constitution, laws, and treaties of the United States. Had a judgment, liable to the same objections, been rendered for property, none would question the jurisdiction of this court. It cannot be less clear when the judgment affects personal liberty, and inflicts disgraceful punishment, if punish- ment could disgrace when inflicted on innocence. The plaintiff in error is not less interested in the operation of this Tmconstitu- tional law than if it affected his property. He is not less entitled to the protection of the constitution, laws, and treaties of his country. This point has been elaborately argued and, after deliberate consideration, decided, in the case of Cohens v. The Common- wealth of Virginia, 6 Wheat., 264. It is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the State of Georgia, con- demning Samuel A. Worcester to hard labor, in the penitentiary of the State of Georgia, for four years, was pronounced by that court under color of a law which is void, as being repugnant to the constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled, [Justices McLean and Washington delivered concurring opinions, and Justice Baldwin rendered a dissentiag opinion.] FONG TUE TING v. UNITED STATES. WONG QUAN T. UNITED STATES. LEE JOE V. UNITED STATES. 149 U. S., 698. Decided 1893. These were three writs of habeas corpus, granted by the Circuit Court of the United States, for the Southern District of New York, upon petitions of Chinese laborers, arrested and held by the marshal of the district for not having certificartes of residence, under section 6 of the act of May 5, 1892, c. 60, which is copied in the mar- gin. Each petition alleged that the petitioner was arrested and de- tained without due process of law, and that section 6 of the act of 596 CASES ON CONSTITUTIONAL LAW. May 5, 1893, was unconstitutional and void. [The section com- plained of required Chinese laborers within the limits of the United States at the time of the passage of the aot to take out certificates of residence. Those who neglected to do so within one year without good cause were made liable to deportation.] In each case, the Circuit Court, after a hearing upon the writ of habeas corpus and the return of the marshal, dismissed the writ of habeas corpus, and allowed an appeal of the petitioner to this court, and admitted him to bail pending the appeal. . . . Mk. Justice Gray, after stating the facts, delivered the opinion of the court. The general principles of public law which lie at the foundation of these cases are clearly established by previous judgments of this court, and by the authorities therein referred to. In the recent case of Nishimura Ekiu v. United States, 143 U. S., 651, 659, the court, in sustaining the action of the execu- tive department, putting in force an act of Congress for the ex- clusion of aliens, said: "It is an accepted maxim of international law, that every sovereign nation has the power, as inherent in sov- ereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them only in such eases and upon such conditions as it may see fit to prescribe. In the United Staites, this power is vested in the national government, to which the Constitution has committed the entire control of inter- national relations, in peace as well as in war. It belongs to the political department of the government, and may be exercised either through treaties made by the President and Senate, or through statutes enacted by Congress." The same views were more fully expounded in the earlier case of Chae Chan Ping v. United States, 130 U. S., 581, in which the validity of a former act of Congress, excluding Chinese laborers from the United States, under the circumstances therein stated, was affirmed. In the elaborate opinion delivered by Mr. Justice Field, in behalf of the court, it was said: "Those laborers are not citizens of the United States; they are aliens. That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power." "The FONG YUB TING v. UNITED STATES. 597 TJnited States, in. their relation to foreign countries and their subjects or citizens, are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute independence and se- curity throughout its entire territory." 130 U. S., 603, 604. It was also said, repeating the language of Mr. Justice Bradley in Knox v. Lee, 12 Wall., 457, 555: "The United States is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is invested with power over all the foreign relations of the country, war, peace, and negotiations and intercourse with other nations; all of which are forbidden to the state governments." 130 XJ. S., 605. And it was added: 'Tor local interests the several States of the Union exist; but for international purposes, embracing our relations with foreign nations, we are but one peo- ple, one nation, one power." 130 U. S., 606. The court then went on to say: "To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation, and to attain these ends nearly all other considerations are to be subordinated. It matters not in what form such aggression and encroachment come, whether from (the foreign nation acting in its national character, or from vast hordes of its people crowding in upon us. The government, pos- sessing the powers which are to be exercised for protection and security, is clothed with authority to determine the occasion on which the powers shall be called forth; and its determination, so far as the subjects affected are concerned, is necessarily conclusive upon all its departments and officers. If, therefore, the govern- ment of the United States, through its legislative department, considers the presence of foreigners of a diilerent race in this country, who will not assimilate with us, to be dangerous to its peace and security, their exclusion is not to be stayed because at the time there are no actual hostilities with the nation of which the foreigners are subjects. The existence of war would render the necessity of the proceeding only more obvious and pressing. The same necessity, in a less pressing degree, may arise when war does not exist, and the same authority which adjudges the neces- sity in one case must also determine it in the other. In both cases, its determination is conclusive upon the judiciary. If the gov- ernment of the country of which the foreigners excluded are sub- jects is dissatisfied with this action, it can make complaint 'to the executive head of our government, or resort to any other measures which, in its judgment, its interests or dignity may demand; and 598 CASES ON CONSTITUTIONAL LAW. there lies its only remedy. The power of the goveriument to ex- elude foreigners from the country, whenever, in its judgment, the public interests require such exclusion, has heen asserted in re- peated instances, and never denied by ith« executive or legislative departments." 130 U. S., 606, 607. This statement was sup- ported by many citations from the diplomatic correspondence of successive Secretaries of State, collected ia Wharton's Interna- tional Law Digest, § 206. The right of a nation to expel or deport foreigners, who have not been naturalized or taken any steps towards becoming citizens of the country, rests upon the same grounds, and is as absolute and unqualified as the right to prohibit and prevent their entrance into the country. This is clearly affirmed in dispatches referred to by the court in Chae Chan Ping's Case. In 1856, Mr. Marey wrote: "Every society possesses the undoubted right to determine who shall com- pose its members, and it is exercised by all natioms, both in peace and war. A memorable example of the exerci^ of this power in time of peace was the passage of th« alien law of the United States in the year 1798." In 1869, Mr. Fish wrote: "The control of the people within its limits, and the right to expel from its territory persons who are dangerous to the peace of the State,^are too clearly within the essential attributes of sovereignty to be seriously eon- tested." Wharton's International Law Digest, § 306j 130 U. S., 607. . . The right to exclude or to expel all aliens, or any class of aliens, absolutely or upon certain conditions, in war or in peace, being aa inherent and inalienable right of every sovereign and independent nation, essential to its safety, its independence, and its welfare, the question now before the court is whether the manner in which Congress has exercised this right in sections 6 and 7 of the act of 1892 is consistent with the Constitution. The United States are a sovereign and independent nation, and are vested by the Constitution with the entire control of interna- tional relations, and with all the powers of government necessary to maintain that control and to make it effective. The only gov- ernment of this country, which other nations recognize or treat with, is the government of the Union; and the only American flag known throughout the world is the flag of the United States. The Constitution of the United States speaks vdth no uncertain sound upon this subject. That instrument, established by the people of the United States as the fundamental law of the land, has conferred upon the President the executive power; has made FONG YUE TING v. UNITED STATES. 599 him the eommander-in-tliiei of the army and navy; has author- ized hito, hy and with the consent of the Senate, to make treaties, and to appoint ambassadors, public ministers, and consuls; and has made it his duty to take care that the laws be faithfully exe- cuted. The Constitution has granted to Congress the 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 define and punish piracies and felonies com- mitted on the high seas, and offenses against the law of nations; to declare war, grant letters of marque and reprisal, and make ftiles concerning captures on land and water; to raise and support armies, to provide and maintain a navy, and to make rules for the government and regulation of the land and naval forces; and to make all laws necessary and proper for carrying into execution these powers, and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof. And the several States are expressly forbidden to enter into any treaty, alliance, or confederation; to grant letters of marque and reprisal; to enter ilito any agreement or compact with another State, or with a foreign power; or to engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. In exercising the great power which the people of the United States, by establishing a written constitution as the supreme and paramount law, have tested in this court, of determining, when- ever the question is properly brought befare it, whether the acts of the legislature or of the executive are consistent with the Con- stitution, it behooves the court to be careful that it does not under- take to pass upon political questions, the iinal decision of which has been committed by the Constitution to the other denartments of the government. As long ago said by Chief Justice Marshall, and since constantly maintained by this court: "The sound construction of the Con- stitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be car- ried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of ithe Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist- ent with the letter and spirit of the Constitution, are constitu- tional." "Where the law is not prohibited, and is ieally calculated 600 CASES ON CONSTITUTIONAL. LAW. to effect any of the objects intrusted to the government, to under- take here to inquire into the degree of its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power." MeCuUoch v. Maryland, 4 Wheat., 316, 421, 423; Juilliard v. Greenman, 110 U. S., 421, 440, 450; Ex parte Yarbrough, 110 U. S., 651, 658; In re Eapier, 143 U. S., 110, 134; Logan v. United States, 144 U. S., 263, 283. The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Con- gress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial depart- ment has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene. In Nishimura Ekiu's Case, it was adjudged that, although Con- gress might, if it saw fit, authorize the courts to investigate and ascertain the facts upon which the alien's right to land was made by the statutes to depend, yet Congress might intrust the final determination of those facts to an executive ofiicer, and that, if it did so, his order was due process of law, and no other tribunal, unless expressly authorized by law to do so, was at liberty to re- examine the evidence on which he acted, or to controvert its suf- ficiency. 142 U. S., 660. The power to exclude aliens and the power to expel them rest upon one foundation, are derived from one source, are supported by the same reasons, and are in truth but parts of one and the same power. The power of Congress, therefore, to expel, like the power to exclude aliens, or any specified class of aliens, from the country, may be exercised entirely through executive officers; or Congress may call in the aid of the judiciary to ascertain any contested facts on which an alien's right to be in the country has been made by Congress to depend. Congress, having the right, as it may see fit, to expel aliens of a particular class, or to permit them to remain, has undoubtedly the right to provide a system of registration and identification of the members of that class within the country, and to take all proper means to carry out the system which it provides. . . . In our jurisprudence, it is well settled that the provisions of an flot of Congress, passed in the exercise of its constitutional author- ity, on this, as on any other subject, if clear and explicit, must be upheld by the courts, even in contravention of express stipulations FONa YUB TING v. UNITED STATES. 601 in an earlier treaty. As was said by this court in Chae Chan Ping's Case, following previous decisions: "The treaties were of no greater legal obligation than the act of Congress. By the Con- stitution, laws made in pursuance thereof and treaties made under the authority of the United States are both declared to be the supreme law of the land, and no paramount authority is given to one over the other. A treaty, it is true, is in. its nature a contract between nations, and is often merely promissory in its character, requiring legislation to carry its stipulations into effect. Such legislation will be open to future repeal or amendment. If the treaty operates by its own force, and relates to a subject within the power of Congress, it can be deemed in that particular only the equivalent of a legislative act, to be repealed or modified at the pleasure of Congress. In either case, the last expression of the sovereign will must control." "So far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modifica- tion, or repeal." 130 U. S., 600, See also Foster v. Neilson, 2 Pet., 253, 314; Edye v. Eobertson, 113 U, S., 580, 597-599; Whit- ney V. Eobertson, 124 U. S., 190, By the supplementary act of October 1, 1888, c. 1064, it was enacted, in section 1, that "from and after the passage of this act, it shall be unlawful for any Chinese laborer, who shall at any time heretofore have been, or who may now or hereafter be, a resident within the United States, and who shall have departed or shall depart therefrom, and shall not have returned before the passage of this act, to return to, or remain in, the United States;" and in section 2, that "no certificates of identity, provided for in the fourth and fifth sections of the act to which this is a supple- ment, shall hereafter be issued; and every certificate heretofore issued in pursuance thereof is hereby declared void and of no effect, and the Chinese laborer claiming admission by virtue thereof shall not be permitted to enter the United States." 25 Stat., 504. . . . [Here follows a statement and discussion of Chae Chan Ping V. United Staites, 130 U. S., 581.] By the law of nations, doubtless, aliens residing in a country, with the intention of making it a permanent place of abode, ac- quire, in one sense, a domicil there; and, while they are per- mitted by the nation to retain such a residence and domicil, are subject to its laws, and may invoke its protection against other nations. This is recognized by those publicists who, as has been seen, maintain in the strongest terms the right of the nation to 602 CASES ON CONSTITUTIONAL LAW. expel any or all aliens a;t its pleasure. Vattel, lib. 1, c. 19 § 213; 1 Phillimore, c. 18 § 321; Mr. Marcy, in Koszta's Case, Wharton's International Law Digest, § 1&8. See also Lau Ow Bew t. United States, 144 U. S., 47, 62; Merlin, Eepertoire de Jurisprudence, Domicile, § 13, quoted in the case, above cited, of In re Adam, 1 Moore, P, C, 460, 472, 473. Chinese laborersj therefore, like all other aliens residing in the United States for a shorter ot longer time, are entitled, so long as they are permitted by the government of the United States to remain in the country, to the safeguards of the Constitution, and to the protection of the laws, in regard to their rights of person and of property, and to their civil and criminal responsibility. But they continue to be aliens, having taken no steps towards be- coming citizens, and incapable of becoming such under the natural- ization laws; and therefore remain subject to the power of Congress to expel them, or to order them to be semoved and deported froiti the country, whenever in its judgment their removal is necessary or expedient for the public interest. . . . The question whether, aad upon what Conditions, these aliens shall be permitted to remain within the United States being one to be determined by the political departiiients of the government, the judicial department cannot properly express an opinion upon the wisdom, the policy or the Justice of the measures enacted by Congress in the exercise of the powers confided to it by the Con- stitution over this subject. Upon careful consideration of the subject, the only conclusion which appears to us to be consistent with the principles of inter- national law, with the Constitution and laws of the United States, and with the previous decisions of this court, is that in each of these cases the judgment of the Circuit Count, dismissing the writ of habeas corpus, is right and must be Affirmed. [Chief Justice Fulleh, Jitstxce Beewbe, and Justice Field rendered dissenting opinions.] XIV. JURISDICTION OF THE FEDERAL COURTS. CHISHOLM, EXECUTOR, v. GEORGIA. 2 DaUas, 419. Decided 1793. [Chisholm, executor, brouglut an action of assumpsit against the State of Georgia. Return having been made, Attorney-General Randolph, moved that unless the State of Georgia should cause an appearance to be made in its behalf, judgment should be entered against the said State and a writ of inquiry of damages be awarded. When the case came before the court for consideration, the counsel for the State of Georgia made a protest in writing against the court's taking jurisdiction of the case, but declined to take any part in arguing the question. The judges delivered their opinions seriatim. ] ■Wilson, J. This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to 1)6 sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jtirisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others more impor- tant still; and may perhaps be ultimately resolved into one no less radical than this — ^"Do the people of the United States form a Nation?" A cause so conspicuous and interesting, should be carefully and accurately viewed from every possible point of sight. I shall exam- ine it, 1st. By the principles of general jurisprudence. 2d. By the laws and practice of particular states and kingdoms. From the law of nations little or no illustration of this subject can be expected. By that law the several sta,tes and governments spread over our globe are considered as forming a society, not a nation. It has only been by a very few comprehensive minds, such as those of Elizabeth and the Fourth Henry, that this last great idea has feeen even contemplated. 3dly, and chiefly, I shall examine the important question before us, by the constitution of the United 604 CASES ON CONSTITUTIONAL LAW. States, and the legitimate result of that valuable instrument. III. I am, thirdly and chiefly, to examine the important ques- tion now before us, by the constitution of the United States, and the legitimate result of that valuable instrument. Under this view the question is naturally subdivided into two others. 1. Could the consititution of the United States vest a jurisdiction over the State of Georgia? 2. Has that constitution vested such jurisdic- tion in this court? . . . Concerning the prerogative of kings, and concerning the sover- eignty of States, much has been said and written; but little has been said and written concerning a subject much more dignified and important, the majesty of the people. . . . The well- known address used by Demosthenes, when he harangued and animated his assembled countrymen, was, "0 men of Athens." With the strictest propriety, therefore, classical and political, our national scene opens with the most magnificent object which the nation could present. "The people of the United States" are the first personages introduced. Who were those people? They were the citizens of thirteen States, each of which had a separate con- stitution and government, and all of which were connected to- gether by articles of confederation. To the purposes of public strength and felicity that confederacy was totally inadequate. A requisition on the several States terminated its legislative author- ity; executive or judicial authority it had none. In order, there- fore, to form a more perfect union, to establish justice, to insure domestic tranquillity, to provide for the common defense, and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present con- stitution. By that constitution legislative power is vested, execu- tive power is vested, judicial power is vested. The question now fairly opens to our view, could the people of those States, among whom were those of Georgia, bind those States, and Georgia among the others, by the legislative, execu- tive, and judicial power so vested? If the principles on which I have founded myself are just and true, this question must, un- avoidably, receive an affirmative answer. If those States were the work of those people, those people, and that I may apply the case closely, the people of Georgia, in particular, could alter, as they pleased, their former work; to any given degree, they could dimin- ish as well as enlarge it. Any or all of the former State powers they could extinguish or transfer. The inference which necessarily results is, that the constitution ordained and established by those CHISHOLM, EXECUTOR, v. GEORGIA. 605 people, and still closely to apply the case, in particular by the people of Georgia, could vest jurisdiction or judicial power over those States and over the State of Georgia in particular. The next question under this head, is. Has the constitution done 60? Did those people mean to exercise this their undoubted power? These questions may be resolved, either by fair and con- clusive deductions, or by direct and explicit declarations. In order, ultimately to discover whether the people of the United States intended to bind those States by the judicial power vested by the national constitution, a previous inquiry will naturally be, did those people intend to bind those States by the legislative power vested by that constitution? The articles of confederation, it is well known, did not operate upon individual citizens; but oper- ated only upon States. This defect was remedied by the national constitution, which, as all allow, has an operation on individual citizens. But if an opinion, which some seem to entertain, be just, the defect remedied on one side was balanced by a defect intro- duced on the other; for they seem to think that the present con- stitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded. When certain laws of the States are declared to be "subject to the revision and control of the Congress,"^ it cannot, surely, be contended that the legislative power of the naitional government was meant to have no operation on the several States. The fact uncontrovertibly established in one instance, proves the principle in all other in- stances to which the facts will be found to apply. We may then infer that the people of the United States intended to bind the several States by the legislative power of the national govern- ment. In order to make the discovery, at which we ultimately aim, a second previous inquiry will naturally be. Did the people of the United States intend to bind the several States by the executive power of the national government? The affirmative answer to the former question directs, unavoidably, an affirmative answer to this. Ever since the time of Braeton, his maxim, I believe, has been deemed a good one — " Supervacuum esset leges condere, nisi essef qui leges tueretur. "" "It would be superfluous to make laws, unless those laws, when made, were to be enforced." When the laws are plain, and the application of them is uncontroverted, they are enforced immediately by the executive authority of government. When the application of them is doubtful or intricate, the inter- 1 Art. 1, s. 10. 2 1 Brae, 107. 606 CASES QN CONSTITUTIONAL LAW. position of the judicial authority becomes meeessairy. The same principle, theTefoEe, which directed ug from the first to the second step, will direat us to the third and last step of our deduction. Fair and conclusive deduction, then, evinces that the people of the United States did vest this court with jurisdiction over the State of Georgia. The same truth may be deduced from the declared objects and the general texture of the constitution of the United States, One of its declared objects is, to form a union more perfect than, before that time, had been formed. Before that time the Union possessed legislative, but unenforced legisk' tive power over the States. Ifothing could be more natural than to intend that this legislative power should be enforced by powers executive and judicial. Another declared object is "to establish justice." This points, in a particular manner, to the judicial au- thority. And when we view this object in conjunction with the declaration, "that no State shall pass a law impairing the obliga- tion of contracts," we shall probably think that this object points, in a particular manner, to the jurisdiction of the court over the several States. What good purpose could this constitutional pro- vision secure if a State might pass a law impairing the obligation of its own contracts, and be amenable, for such a violation of right, to no controlling judiciary power? We have seen, that on princi- ples of general jurisprudence, a State, for the breach of a con- tract, may be liable for damages. A third declared object is, "to insure domestic tranquillity." This tranquillity is most likely to be disturbed by controversies between States. These consequences will be most peaceably and effectually decided by the establishment and by the exercise of a superintending judicial authority. By euch exercise and establishment, the law of nations — ^the rule be- tween contending States — ^will be enforced among the several States in the same manner as municipal law. Whoever considers, in a combined and comprehensive view, the general texture of the constitution, will be satisfied that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a na- tional government complete in all its parts, with powers legisla- tive, executive and judiciary; and in all those powers extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any person, natural or artificial, should be permitted to claim successfully an entire ex- emption from the jurisdiction of the national government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When so many trains of deduction, coming CHISgOLM, EXECUTOR, v. GEORGIA. 607 from difEerent quarters, converge and unite at last in the sajne point, we may safely conclude,, as the legitimate result of this con- stitution, that the State of Georgia is amenable to the jurisdic- tion of this court. But, in my opinion, this doetrine rests not upon the legitimate result of fair aud conclusive deduction from the constitution; it is confirmed, beyond all doubt, by the direct and explicit declara- tion of the constitution itself. "The^ judicial power of the United States aball extend to controversies between two States."^ Two States are supposed to have a controversy between them; this controversy is supposed to be brought before those vested with the judicial power of the United States; can the most consum- mate degree of professional ingeniiity devise a mode by which this "coHitrover&y be±ween two States" can be brought before a court of law, and yet neither of those States be a defendant? "The judicial power of the United States shall extend to controversies between a State and citizens of another State." Could the strictest legal language; could even that language which is peculiarly appropriated, to an act, deemed by a great master to be one of the most honorable, laudable, and profitable things in our law; could this strict and appropriated language describe with more precise accuracy the cause now depending before the tribunal? Causes, and not parties to causes, are weighed by justice in her equal scales; on the former, solely, her attention is fixed; to tlie latter she is, as she is painted, blind. I have now tried this question by all the touchs:tones to which I proposed to apply it. I have exMnined it by the principles of general jurisprudence; by the laws and practice of States and kingdoms; and by the constitution of the United States. From all, the combined inference is, that the action lies. Gushing, J. The grand and principal question, in this case, is whether a State can, by the federal constitution, be sued by an individual citizen of another State. The point turns not upon the ^W or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the constitution established by the people of the United States; and particularly upon the extent of powers given to the federal judiciary in the 2d section of the 3d article of the constitution. It is declared that "the judicial power shall extend tp all cases in law and equity arising under the con- stitution, the laws of the United States, or treaties made or which shall be made under their authority: to all cases affecting ambassa- lArt. 3, s. 2. 608 CASES ON CONSTITUTIONAL LAW. dors or other public ministers and consuls; to all eases of ad- miralty and maritime jurisdiction; to controversies to which, the United States shall be a party; to controversies between two or more States, and citizens of another State; between citizens of dif- ferent States; between citizens of the same States claiming lands under grants of different States; and between a State and citizens thereof and foreign States, citizens or subjects." The judicial power, then, is expressly extended to "controversies between a State and citizens of another State." When a citizen makes a demand against a State of which he is not a citizen, it is as really a con- troversy between a State and a citizen of another Sitate, as if such State made a demand against such citizen. The case then seems clearly to fall within the letter of the constitution. It may be suggested that it could not be intended to subject a State to be a defendant, because it would affect the sovereignty of States. If that be the case, what shall we do with the immediate preceding clause: "controversies between two or more States," where a State must of necessity be a defendant? If it was not the intent, in the very next clause also, that a State might be made defendant, why was it so expressed as naturally to lead to and comprehend that idea? Why was not an exception made if one was intended? Again, what are we to do with the last clause of the section of judicial powers, namely, "controversies between a State or the citi- zens thereof and foreign States or citizens"? Here, again. States must be suable or liable to be made defendants by this clause, which has a similar mode of language with the two other clauses I have remarked upon. For if the judicial power extends to a controversy between one of the United States and a foreign State, as the clause expresses, one of them must be defendant. And then what becomes of sovereignty of States, as far as suing affects it? But although the words appear reciprocally to affect the State here and a foreign State, and put them on the same footing as far as may be, yet ingenuity may say that the State here may sue, but cannot be sued; but that the foreign State may be sued, but cannot sue. We may touch foreign sovereignties, but not our own. But I conceive the reason of the thing as well as the words of the constitution, tend to show that the federal judicial power extends to a suit brought by a foreign State, against any one of the United States. One design of the general government was for managing the great affairs of peace and war, and the general de- fense, which were impossible to be conducted by the States sep- arately. Incident to these powers, and for preventing controversies between foreign powers, or citizens from rising to extremities and CHISHOLM, EXECUTOR, T. GEORGIA. 609 to an appeal to the sword, a national tribunal was necessary, amic- ably, to decide them, and thus ward off such fatal public calamity. Thus States at home and their citizens, and foreign States and their citizens, are put together without distinction upon the same footing, as far as may be, as to controversies between them. So also with respect to controversies between a State and citizens of another State at home, comparing all the clauses together the remedy is re- ciprocal; the claim to justice equal. As controversies between State and State, and between a State and citizens of another State might tend gradually to involve States in war and bloodshed, a disinterested civil tribunal was intended to be instituted to decide such controversies, and preserve peace and friendship. Further: if a State is entitled to justice in the federal court, against a cit- izen of another State, why not such citizen against the State, when the same language equally comprehends both? The rights of individuals and the justice due to them are as dear and pre- cious as those of States. Indeed the latter are founded upon the former, and the great end and object of them must be to secure and support the rights of individuals, or else vain is government. But still it may be insisted that this' will reduce States to mere Corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers? As to individual States and the TJnited States, the constitution marks the boundary of powers. Whatever power is deposited with the Union by the people for their own necessary security, is so far a curtailing of the power and prerogatives of the States. This is, as it were, a self-evident prop- osition; at least it cannot be contested. Thus the power of de- claring war, making peace, raising and supporting armies for public defense, levying duties, excises, and taxes, if necessary, with many other powers, are lodged in Congress, and are a most essential abridgement of State sovereignty. Again, the restrictions upon the States. "No State shall enter into any treaty, alliance, or confederation, coin money, emit bills of credit, make anything but gold and silver a tender in payment of debts, pass any law impair- ing the obligation of contracts; these, with a number of others, are important restrictions of the power of States, and were thought necessary to maintain the Union, and to establish some funda- mental uniform principles of public justice throughout the whole Union. So that I think no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole. If the constitution is found inconvenient in practice in this or 39 610 CASES ON CONSTITUTIONAL LAW. any other particular, it is well that a regular mode is pointed put for amendment. But while it remains, all officeg, legislative, executive, and judicial, both of the States and of the Union, are bound by oath to support it. One other objection has been suggested; that if a State may be sued by a citizen of another State, then the United States may be sued by a citizen of any one of the States, or, in other words, by any of their citizens. If this be a necessary consequence, it must be so. I doubt the consequence from the different word- ing of the different clauses, connected with other reasons. When speaking of the United States, the constitution says, "controversies to which the United States shall be a party," not controversies between the United States and any of their citizens. When speak- ing of States, it says, "controversies between two or more States, between a State and citizens of another State." As to reasons for citizens suing a different State which do not hold equally good for suing the United States, one may be, that as controversies between a State and citizens of another State might have a ten- dency to involve both States in contest, and perhaps in war, a common umpire to decide such controversies may have a tendency to prevent the mischief. That an object of this kind was had in view by the framers of the constitution, I have no doubt, when I consider the clashing interfering laws which were made in the neighboring States before the adoption of the constitution, and some affecting the property of citizens of another State in a very different manner from that of their own citizens. But I do not think it necessary to enter fully into the question, whether the United States are liable to be sued by an individual citizen, in ■order to decide the point before us. Upon the whole, I am of opinion that the constitution warrants a suid; against a State by .an individual citizen of another State. . . . .Jay, C. J. . . . Let us now proceed to inquire whether Georgia has not,' by being a party to the national com- pact, consented to be suable by individual citizens of another State. This inquiry naturally leads our attention, 1st. To the •design of the constitution. 2d. To the letter and express declara- tion ,in it. .Prior, to the da)te of the constitution, the people had not any na- tional tribunal to which they could resort for justice; the dis- tribution of justice was then confined to State judicatories, in whose institution and organization the people of the other States had Jio jjanticipation, and over whom they had not the least con- GHISHOLM, EXECUTOR, v. GEORGIA. 611 trol. There was then no general court of appellate jurisdiction by whom the errors of State courts, afEecting either the nation at large or the citizens of any other State, could he revised and corrected. Each State was obliged to acquiesce in the measure of justice which another State might yield to her or to her citizens; and that even in cases where State considerations were not al- ways favorable to the most exact measure. There was danger thait from this source animosities would in time result; and as the transition from animosities to hostilities was frequent in the his- tory of independent States, a common tribunal for the termina- tion of controversies became desirable, from motives both of jus- tice and of policy. Prior also to that period the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations, and it was their interest as well as their duty to provide that those laws should be respected and obeyed; in their national character and capacity the United States were re- sponsible to foreign nations for the conduct of each State, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to Staite courts, and particularly to the courts of delinquent States, became appar- ent. While all the States were boimd to protect each and the citizens of each, it was highly proper and reasonable that they should be in a capacity not only to cause justice to be done to each, and the citizens of each, but also to cause justice to be done by each, and the citizens of each, and ithat, not by violence and force, but in a stable, sedate, and regular course of judicial pro- cedure. These were among the evils against which it was proper for the nation, that is, the people of aU the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation. Let us now turn to the constitution. The people therein declare that their design in establishing it comprehended six objects. 1st. To form a more perfect union. 3d. To establish justice. 3d. To insure domestic tranquillity. 4th. To provide for the com- mon defense. 5th. To promote the general welfare. 6th. To secure the blessings of liberty to themselves and their posterity. • > • It may be asked, what is the precise sense and latitude in which the words "to establish justice," as here used, are to be under- stood? The answer to this question will result from the provi- sions made in the constitiition on this head. They are specified 613 CASES ON CONSTITimONAL LAW. in the second section of the thifS article, where it is ordainea that the judicial powet of the United States shall extend to ten descriptions of cases, namely: Ist. To all cases arising under this constitution; because the meaning, construction, and operation of a compact ought alivays to be ascertained by all the parties, or by authority derived only from one of them. M. To all cases arising under the laws of the United States; because as such laws, con- stitutionally made, are obligatory on each State, the measure of obhgation and obedience ought not to be decided and fixed by the party from whom they ate dne, but by a tribunal deriTing auihor- ity from both the parties. 3d. To all cases arising under treaties made by their authority; because, as treaties are compacts mad-e by, and obligatory on the whole nation, theif operation ought not to be affected or regulated by the local laws or courts of a part of the nartion. 4th. To all cases affecting ambassadors, or other public ministers and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. &th. To all cases of admiralty and maritime jurisdiction; because, as the seas are the joint property of nations, whose right and privileges relative thereto are regulated by the laws of nations and treaties, such cases necessarily belong to national jurisdiction. 6th. To controversies to which the United States shall be a party; because, in cases in which the whole people are interested it would not be equal or wise to let any one State decide and measure out the justice due to others. 7th. To controversies between two or more States; because domestic tranquilhty requires that the contentions of States should be peaceably terminated by a common judicatory; and, because, in a free country, justice ought not to depend on (the will of either of the litigants. 8th. To controversies between a State and citizens of another State; because, in case a State (that is, all the citizens of it) has demands against some citizens of another State, it is better that she should prosecute their demands in a national court, than in a court of the State to which those citizens belong; the danger of irritation and criminations arising from apprehensions and suspicions of partiality being thereby ob- viated; because, in cases where some citizens of one State have demands against all the citizens of another State, the cause of liberty and the rights of men forbid that the latter should be the sole judges of the justice due to the latter; and true repub- lican government requires that free and equal citizens should have free, fair, and equal justice. 9th. To controversies between citi- CHISHOLM, EXECUTOR, v. GEORGIA. 613 zens of the Bame State, claiiaing lands under grants of different States; because, as the rights of the two States to grant the land are drawn into question, neither of the two States ought to decide the question. IGth. To controversies between a State or the cit- izens thereof and foreign States, citizens or subjects; because, as every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations, or people, ought to be ascertained by, and depend on, national authority. Even this cursory view of the judicial powers of the United States leaves the mind strongly impressed with the importance of them to the preservation of the tranquillity, the equal sovereignty, and the «qual right of the people. The question now before us renders it necessary to pay particular attention to that part of the second section which extends the judicial power "to controversies between a State and citizens of another State." It is contended that this ought to be construed to reach none of these controversies, excepting those in which a State may be plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense. This extension of power is remedied, because it is to settle con- troversies. It is, therefore, to be construed liberally. It is politic, wise, and good, that noit only the controversies in which a State is plaintiff, but also those in which a State is defendant, should be settled; both cases, therefore, are within the reason of the remedy; and ought to be so adjudged, imless the obvious, plaiii, and lit- eral sense of the words forbid it. If we attend to the words, we find them to be express, positive, free from ambiguity, and with- out room for such implied expressions: "The judicial power of the United States shall extend to controversies between a State and citizens of another State." If the constitution really meant to extend these powers only to those controversies in which a State might be plaintiff, to the exclusion of those in which citizens had demands against a State, it is inconceivable that it should have attempted to convey that meaning in words not only so incom- petent, but also repugnant to it; if it meant to exclude a certain class of these controversies, why were they not expressly excepted; on the contrary, not even an intimation of such intention appears in any part of the constitution. It cannot be pretended that where citizens urge and insist upon demands against a State, which the State refuses to admit and comply with, that there is no contro- versy between them. If it is a controversy between them, then it clearly falls not only within the spirit, but the very words of the 614 CASES ON CONSTITUTIONAL LAW. constitution. What is it to the cause of justice, and how can it affect the definition of the word controversy, whether the demands which cause the dispute are made by a State against citizens of another State, or by the latter against the former? When power is thus extended to a controversy, it necessarily, as to all judicial purposes, is also extended to those between whom it subsists. We find the same general and comprehensive manner of express- ing the same ideas in a subsequent clause, in which the constitu- tion ordains 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 jurisdiction." Did it mean here party plaintiff? If that only was meant, it would have been easy to have found words to express it. Words are to be under- «5tood in their ordinary and common acceptation, and the word party being in common usage applicable both to plaintiff and de- fendant, we cannot limit it to one of them in the present case. We find the legislature of the United States expressing themselves in the like general and comprehensive manner; they speak, in the thirteenth section of the judicial act, of controversies where a State is a party, and as they do not impliedly or expressly apply that term to either of the htigants in particular, we are to understand them as speaking of both. In the same section they distinguish the cases where ambassadors are plaintiffs, from those in which ambassadors are defendants, and make different provisions respect- ing those cases; and it is not unnatural to suppose that they would, in like manner, have distinguished between cases where a State was plaintiff and where a State was defendanit, if they had in- tended to make any difference between them, or if they had appre- hended that the constitution had made any difference between them. I perceive, and therefore candor urges me to mention, a circum- stance, which seems to favor the opposite side of the question. It is this: The same section of the constitution which extends the judi- cial power to controversies '^between a State and the citizens of an- other State," does also extend that power to controversies to which the United States are a party. Now it may be said, if the word party comprehends both plaintiff and defendant, it follows that the United States may be sued by any citizen, between whom and them there may be a controversy. This appears to me to be fair reasoning; but the same principles of candor which urge me to mention this objection, also urge me to suggest an important differ- CHISHOLM, EXECUTOR, v. GEORGIA. 615 ence between the two cases. It is this: In all cases of actions against States or individual citizens the national courts are sup-, ported in all their legal and constitutional proceedings and judg- ments by the arm of the executive power of the United States; but in cases of actions against the United States, there is no power which the courts can call to their aid. From this distinction im- portant conclusions axe deducible, and they place the case of a State, and the ease of the United States, in very different points of view. ... For the reasons before given,. I am clearly of opinion that a State is suable by citizens of another State; but lest I should be under- stood in a latitude beyond by meaning, I think it necessary to sub- join this caution, namely. That such suability may nevertheless not extend to all the demands, and to every kind of action; there may be exceptions. For instance, I am far from being prepared to say that an individual may sue a State on bills of credit issued before the constitution was established, and which were issued and received on the faith of the State, and at a time when no ideas or expectations of judicial interposition were entertained or con- templated. . . . [Justice Ihedell delivered a dissenting opinion. Jtjsticb Blaib rendered a concurring opinion.] Note. — "The question, in short, was, whetherthe Constitution waa a bond of national unity, or such federal league only as would be dis- soluble at the pleasure of any party to it. . . , Justice Wilson, the ablest and most learned of the associates, took the national view and was supported by two others. The Chief Justice waa thus enabled to declare as the opinion of the court, that under the Constitution of the United States, sovereignty belonged to the people of the United States. . . . The doctrine. of an indis- soluble Union, though not in terms declared, is nevertheless in its elements at least contained in the decision. The qualified sov- ereignty, national and State, the subordination of State to nation, the position of the citizen as at once a necessary component part of the federal and of the State system, are all exhibited. It must logically follow that a nation as a sovereignty is possessed of all those powers of independent action and self-protection which the successors of Jay subsequently demonstrated were by implication conferred upon it." Cooley in Constitutional History as seen in American Law, 48, 49. "It is not rational to suppose that a sovereign power shall be dragged before a court. The intent is to enable States to recover 616 CASES ON CONSTITUTIONAL. LAW. claims of individuals residing in other States." John Marshall in the Virginia Convention of 1787, Elliot's Debates, III, 555. A similar opinion is expressed hy Hamilton in The Federalist, No. 81. "The decision was pronounced on the 18th of February, 1793; two days afterward the Eleventh Amendment to the Constitution was proposed to Congress." Carson, The Supreme Court of the United States, 177. For an adverse criticism of the judgment rendered in this case, see the opinion of the court in. Hans v. Louisiana, 134 IT. S., 1. MAETIN, Heik at Law and Devisee of Faikfax, v. HUNTEE'S LESSEE. 1 "Wheaton, 304. Decided 1816. This case is fully stated in the opinion of the court. . . . Stoet, J., delivered the opinion of the court. This is a writ of error from the court of appeals of Virginia, founded upon the refusal of that court to obey the mandate of this court, requiring the judgment rendered in this very cause, at February term, 1813, to be carried into due execution. The fol- lowing is the judgment of the court of appeals rendered on the mandate: "The court is unanimously of opinion, that the appel- late power of the supreme court of the United States does not extend to this court, under a sound construction of the constitution of the United States; that so much of the 35th section of the act of congress to establish the judicial courts of the United States, as extends the appellate jurisdiction of the supreme court to this court, is not in pursuance of the constitution of the United States; that the writ of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the supreme court were coram nonjudice, in relation to this court, and that obedience to its mandate be declined by the court." . . . Before proceeding to the principal questions, it may not be unfit to dispose of some preliminary considerations which have grown out of the arguments at the bar. The constitution of the United States was ordained and estab^ lished, not by the States in their sovereign capacities, but emphat* ically, as the preamble of the constitution declares, by "the people of the United States." There can be no doubt that it was com- MARTIN V. HUNTER'S LESSEE. 617 petent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there he, that the people had a right to prohibit to the States the exercise of any powers which were, in their judgment, incom- patible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation, or to reserve to themselves those sovereign authorities which they might not choose to delegate to either. The constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in state institutions, for the powers of the States depend upon their own constitutions; and the people of every State had the right to modify and restrain them, according to their own views of policy or principle. On the other hand it is perfectly clear that the sov- ereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so fax as they were granted to the government of the United States. These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognized by one of the articles in amendment of the constitution, which ■declares that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. On the other hand, this instru- ment, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is ex- pressly given in general terms, it is not to be restrained to par- ticular cases, unless thait construction grows out of the context expressly, or by necessary implication. The words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged. The constitution, unavoidably, deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. It was foreseen that this would be a perilous and difficult, if not an impracticable, task. The instrument was not intended to provide merely for the exigencies of a few years, but 618 CASES ON CONSTITUTIONAL "TAW. was to endure througli a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence. It could not be foreseen what new changes g,nd modificaitions of power might be indispensable to effectuate the general objects of the charter; restrictions and specifications, which at the present might seem salutary, might, in the end, prove the overthrow of the system itself. Hence its powers are expressed in general terms, leaving to the legislature, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require. With these principles in view, principles in respect to which no difference of opinion ought to be indulged, let us now proceed to the interpretation of the constitution, so far as regards the great points in controversy. The third article of the constitution is that which must princi- pally attract our attention. . . . This leads us to the consideration of the great question as to the nature and extent of the appellate jurisdiction of the United States. We have already seen that appellate jurisdiction is given by the constitution to the supreme court in all cases where it has not original jurisdiction, subject, however, to such exceptions and regulations as congress may prescribe. It is, therefore, capable of embracing every case enumerated in the constitution, which is not exclusively to be decided by way of original jurisdiction. But the exercise of appellate jurisdiction is far from being limited by the terms of the constitution to the supreme court. There can be no doubt that congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdic- tion. The judicial power is delegated by the constitution in the most general terms, and may, therefore, be exercised by congress under every variety of form, of appellate or original jurisdiction. And as there is nothing in the constitution which restrains or limits this power, it must, therefore, in all other cases, subsist in the utmost latitude of which, in its own nature, it is susceptible. As, then, by the terms of the constitution, the appellate jurisdic- tion is not limited as to the supreme court, and as to this court it may be exercised in all other cases than those of which it has original cognizance, what is there to restrain its exercise over state tribunals in the enumerated cases? The appellate power is not limited by the terms of the third article to any particular courts. The words are, "the judicial power (which includes appellate power) shall extend to all cases," &c., and "in all other cases be- MARTIN V. HUNTER'S LESSEE. 619 fore mentioned the supreme court shall have appellate jurisdiction." It is the case, then, and not the court, that gives the jurisdiction. If the judicial power extends to the case, it will be in vain to search in the letter of the constitution for any qualifications as to the trihunal where it depends. It is incumbent, then, upon those who assert such a qualification to show its existence by necessary implication. If the text be clear and distinct, no restriction upon its plain and obvious import ought to be admitted, unless the in- ference be irresistible. If the constitution meant to limit the appellate jurisdiction ta cases pending in the courts of the United States, it would neces- sarily follow that the jurisdiction of these courts would, in all the cases enumerated in the constitution, be exclusive of state tribunals. How otherwise could the jurisdiction extend to all cases arising under the constitution, laws, and trea;ties of the United States, or to all cases of admiralty and maritime jurisdiction? If some of these cases might be entertained by state tribunals, and no appellate jurisdiction as to them should exist, then the appellate power would not extend to all, but to some, cases. If state tribunals might exercise concurrent jurisdiction over all or some of the other classes of cases in the constitution withou/t control, then the appellate jurisdiction of the United States, might, as to such cases, have no real existence, contrary to the manifest intent of the constitution. Under such circumstances, to give effect to the judi- cial power, it must be construed to be exclusive; and this not only when the casus fcederis should arise directly, but when it should arise, incidentally, in cases pending in state courts. This construc- tion would abridge the jurisdiction of such court far more than has been ever contemplated in any act of congress. On the other hand, if, as has been contended, a discretion be vested in congress to establish, or not to establish, inferior courts at their own pleasure, and congress should not establish such courts, the appellate jurisdiction of the supreme court would have noth- ing to act upon, unless it could act upon cases pending in the etate courts. Under such circumstances, it must be held that the appellate power would extend to state courts; for the constitution is peremptory that it shall extend to certain enumerated cases, • which cases could exist in no other courts. Any other construc- tion, upon this supposition, would involve this strange contradic- tion, that a discretionary power vested in congress, and which they might rightfully omit to exercise, would defeat the absolute in- junctions of the constitution in relation to the whole appellate power. 620 CASES ON CONSTITUTIONAL LAW. But it is plain tliat the framers of the constitution did contem- plate that cases within the judicial cognizance of the United States not only might but would arise in the state courts, in the exercise of their ordinary jurisdiction. With this view the sixth, article declares, 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 contrary notwithstanding." It is obvious that this obligation is imperative upon the state judges in their of&cial, and not merely in their private, capacities. From the very nature of their judicial duties they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or constitution of the State, but according to the constitution, laws, and treaties of the United States, "the supreme law of the land." A moment's consideration will show us the necessity and pro- priety, of this provision in cases where the jurisdiction of the state courts is unquestionable. Suppose a contract for the payment of money is made between citizens of the same State, and per- formance thereof is sought in the courts of that State; no person can doubt thatihe jurisdiction completely and exclusively attaches, in the first instance, to such courts. Suppose, at the trial, the defendant sets up in his defense a tender under a state law, mak- ing paper money a good tender, or a state law, impairing the obliga- tion of such contract, which law, if binding, would defeat the suit. The constitution of the United States has declared that no State shall make anything but gold or silver coin a tender in payment of debts, or pass a law impairing the obligation of contracts. If congress shall not have passed a law providing for the removal of such a suit to the courts of the United States, must not the state court proceed to hear and determine it? Can a mere plea in defense be of itself a bar to further proceedings, so as to pro- hibit an inquiry into its truth or legal propriety, when no other tribunal exists to whom judicial cognizance of such cases is con- fided? Suppose an indictment for a crime in a state court, and the defendant should allege in his defense that the crime was created by an ex post facto act of the State, must not the state court, in the exercise of a jurisdiction which has already rightfully attached, have a right to pronounce on the validity and sufficiency of the defense? It would be extremely difficult, upon any legal principles, to give a negative answer to these inquiries. Innumer- MARTIN V. HUNTER'S LESSEE. 621 able instances of the same sort might be stated in illustration of the position; and unless the state courts could sustain jurisdiction in such cases, this clause of the sixth article would be without meaning or effect, and public mischiefs, of a most enormous mag- nitude, would inevitably ensue. It mnst, therefore, be conceded that the constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before state tribTinals. It was foreseen that in the exercise of their ordinary jurisdiction, state courts would incidentally take cog- nizance of cases arising under the constitution, the laws, and' treaties of the United States. Yet to all these cases the judicial power, by the very terms of the constitution, is to extend. It can- not extend by original jurisdiction if that was already rightfully and exclusively attached in the state courts, which (as has been already shovm) may occur; it must therefore extend by appellate jurisdiction, or not at all. It would seem to follow that the appellate power of the United States must, in such cases, extend to state tribunals; and if in such eases, there is no reason why it should not equally attach upon all others within the j)urview of the constitution. It has been argued that such an appellate jurisdiction over state courts is inconsistent with the genius of our governments, and the spirit of the constitution. That the latter was never designed to act upon state sovereignties, but only upon the people, and that, if the power exists, it will materially impaix the sovrareignty of the States, and the independence of their courts. We cannot yield to the force of this reasoning; it assumes principles which we cannot admit, and draws conclusions to wliich we do not yield ova assent. It is a mistake tlrat the constitution was not designed to operate upon States, in their corporate capacities. It is crowded with pro- visions which restrain or annul the sovereignty of the States in some of the highest branches of their prerogatives. The tenth sec- tion of the first article contains a long list of disabilities and pro- hibitions imposed upon the States. Surely, when such essential portions of state sovereignty are taken away, or prohibited to be exercised, it cannot be correctly asserted that the constitution does not act upon the States. "Hie language of the constitution is also imperative upon the States, as to the performance of many duties. It is imperative upon the state legislatures to make laws prescribing the time, places, and manner of holding elections for senators and represeBftativeg, and for electors of president and vice-president. 622 CASES ON CONSTITUTIONAL LAW. And in these, as well as in some other cases, congress have a right to revise, amend, or supersede the laws which may be passed by state legislatures. When, therefore, the States are stripped of some of the highest attributes of sovereignty, and the same are given to the United States; when the legislatures of the States are, in some respects, under the control of congress, and in every case are, under the constitution, bound by the paramount authority of the United States; it is certainly difficult to support the argu- ment that the appellate power over the decisions of state courts is contrary to the genius of our institutions. The courts of the United States can, without question, revise the proceedings of ithe execu- tive and legislative authorities of the States, and if they are found to be contrary to the constitution, may declare them to be of no legal validity. Surely, the exercise of the same right over judicial tribunals is not a higher or more dangerous act of sovereign power. Nor can such a right be deemed to impair the independence of state judges. It is assuming the very ground in controversy to assert that they possess an absolute independence of the United States. In respect to the powers granted to the United States, they are not independent; they are expressly bound to obedience by the letter of the constitution; and if they should unintention- ally transcend their authority, or misconstrue the constitution, there is no more reason for giving their judgments an absolute and irresistible force, than for giving it to the acts of the other co-ordinate departments of state sovereignty. The argument urged from the possibility of the abuse of the revising power, is equally unsatisfactory. It is always a doubtful course, to argue against the use or existence of a power, from the possibility of its abuse. It is still more difficult, by such an argu- ment, to engraft upon a general power, a restriction which is not to be found in the terms in which it is given. From the very nature of things, the absolute right of decision, in the last resort, must rest somewhere — wherever it may be vested it is susceptible of abuse. In all questions of jurisdiction the inferior, or appellate court must pronounce the final judgment; and common-sense, as well as legal reasoning, has conferred it upon the latter. It has been further argued against the existence of this appellate power, that it would form a novelty in our judicial institutions. This is certainly a mistake. In the articles of confederation, an instrument framed with infinitely more deference to state rights and state jealousies, a power was given to congress, to establish "courts for revising and determining, finally, appeals in all cases of captures." It is remarkable, that no power was given to enter- MARTIN V. HUNTER'S LESSEE. 633 tain original jurisdiction in such cases; and, consequently, the ap- pellate power (although not so expressed in terms) was altogether to be exercised in revising the decisions of state tribunals. This was, undoubtedly, so far a surrender of state sovereignty; but it never was supposed to be a power fraught with public danger, or destructive of the independence of state judges. On the contrary, it was supposed to be a power indispensable to the publie safety, inasmuch as our national rights might otherwise be compromitted, and our national peace be endangered. Under the present consti- tution the prize jurisdiction is confined to the courts of the United States; and a power to revise the decisions of state courts, if they should assert jurisdiction over prize causes, cannot be less impor- tant, or less useful, than it was under the confederation. In this connection, we are led again to the construction of the words of the constitution, "the judicial power shall extend," etc. If, as has been contended at the bar, the term "extend" have a relative signification, and mean to widen an existing power, it will then follow, that, as the confederation gave an appellate power over state tribunals, the constitution enlarged or widened that ap- pellate power to all the other cases in which jurisdiction is given to the counts of the United States. It is not presumed that the learned counsel would choose to adopt such a conclusion. It is further argued, that no great public mischief can result from a construction which shall limit the appellate power of the United States to cases in their own courts: first, because state judges are bound by an oath to support the constitution of the United States, and must be presumed to be men of learning and integrity; and, secondly, because congress must have an unques- tionable right to remove all cases within the scope of the judicial power, from the state courts to the courts of the United States, at any time before final judgment, though not after final judgment. As to the first reason — admitting that the judges of the state courts are, and always will be, of as much learning, integrity, and wis- dom, as those of the courts of the United States (which we very cheerfully admit), it does not aid the argument. It is manifest that the constitution has proceeded upon a theory of its own, and given or withheld powers according to the judgment of the Amer- ican people, by whom it was adopted. We can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The constitution has presumed (whether rightly or wrongly we do not inquire) that state attach- ments, state prejudices, state jealousies, and state interests, might sometimes obstruct, or control, or be supposed to obstruct or con- 624 CASES ON CONSTlTUTIONAXi LAW. trol, the regular administration of justice. Hence, in controver- sies between States; between citizens of different States; between citizens claiming grants nnder diiferent States; between a State and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of congress, to have Hie controversies heard, tried, and determined before the national tribunals. Ko other reason than that which has Tjeen stated can be assigned, why some, at least, of those cases should not have been left to the cognizance of the state courts. In respect to the other enumerated cases — the eases arising under the constitution, laws, and treaties of the United States, cases affecting ambassadors and other public ministers, and cases of admiralty and maritime juris- diction — treasons of a higher and more extensive nature, touch- ing the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive jurisdiction. This is not all. A motive of another kind, perfe&tly compatible with the most sincere respect for state tribunals, might induce tbs grant of appellate power over their decisions. That motive is the importance, and even necessity of uniformity of decisions through- out the whole United States, upon all subjects within the purview of the constitution. .Jadges of equal learning and integrity, in different States, might differently interpret a statute, or a treaty of the United States, or even the constitution itself. If there were no revising authority to control these jarring and discordant judgments, and harmonize them into unifonnity, the laws, the treaties, and the constitution of the United States would be differ- ent in different States, and might perhaps never have precisely the same construction, obligation, or efScacy, in any two States. The public mischiefs that would attend such a^tate of things would be truly deplorable; and it cannot be believed that they could have escaped the enlightened convention which formed the constitu- tion. What, indeed, might then have been only prophecy has now become fact; and the appellate jurisdiction must continue to be the only adequate remedy for such evils. There is an additional consideration, which is entitled to great weight. The constitution of the United States was designed for the common and equal benefit of all the people of the United States. The judicial power was granted for the same benign and salutary jpurposes. It was not to be exercised exclusively for the benefit of parties who might be plaintiffs, and would elect the national forum, but also for the protection of defendants who might be entitled to try their rights, or assert their privileges, before the same forum. Yet, if the construction contended for be correct. MARTIN T. HUNTER'S LESSEE. 625 it will follow, that as the plaintifE may always elect the state court, the defendant may be deprived of all the security which the con- stitution intended in aid of his rights. Such a state of things can, in no respect, be considered as giving equal rights. To obviate this difficulty, we are referred to the power which it is admitted congress possess to remove suits from state courts to the national courts; and this forms the second ground upon which the argu- ment we are considering has been attempted to be sustained. This power of removal is not to be found in express terms in any part of the constitution; if it be given, it is only given by implication, as a power necessary and proper to carry into effect some express power. The power of removal is certainly not, in strictness of language; it presupposes an exercise of original juris- diction to have attached elsewhere. The existence of this power of removal is familiar in courts acting according to the course of the common law in criminal as well as civil cases, and it is exercised before as well as after judgment. But this is always deemed in both cases an exercise of appellate, ajid not of original jurisdiction. If, then, the right of removal be included iii the appellate jurisdic- tion, it is only because it is one mode of exercising that power, and as congress is not limited by the constitution to any particular mode, or time of exercising it, it may authorize a removal either before or after the judgment. The time, the process, and the man- ner, must be subject to its absolute legislative control. A writ of error is, indeed, but a process which removes the record of one court to the possession of another court, and enables the latter to inspect the proceedings, and give such judgment as its own opinion of the law and justice of the case inay warrant. There is nothing in the nature of the process which forbids it from being applied, by the legislature, to interlocutory as well as final judg- ments. And if the right of removal from state courts exists be- • fore judgment, because it is included in the appellate power, it must, for the same reason, exist after judgment. And if the appellate power by the constitution does not include cases pend- ing in state courts, the right of removal, which is but a mode of exercising that power, cannot be applied to them. Precisely the same objections, therefore, exist as to the right of removal before judgment as after, and both must stand or fall together. Nor, indeed, would the force of the arguments on either side materially vary, if the right of removal were an exercise of original jurisdic- tion. It would equally trench upon the jurisdiction and inde- pendence of state tribunals. The remedy, too, of removal of suits would be utterly inadequate 40 636 CASES ON CONSTITUTIONAL LAW, to the purposes of the constitution, if it eould act only on the parties, and not upon the state courts. In respect to criminal prosecutions, th« difficulty seems admitted to be insurmountable; and, in respect to civil suits, there would, in many cases, be rights without corresponding remedies. If state courts should deny the constitutionality of the authority to remove suits from their cog- nizance, in what manner could they be compelled to relinquish the jurisdiction? In Tespect to criminal cases, there would at once be an end of all control, and the state decisions would be para- mount to the constitution; and though in civil suits the courts of the United States might act upon the parties, yet the state courts might act in the same way; and this conflict of jurisdictions would not only jeopardize private rights, but bring into imminent peril the public interests. On the whole, the court are of opinion, that the appellate power of the United States does extend to oases pending in the state courts; and that the 35th section of the Judiciary Act, which authorizes the exercise of this jurisdiction in the specified cases, by a writ of error, is supported by the letter and spirit of the con- stitution. We find no clause in that instrument which limits this power; and we dare not interpose a limitation where the people have not been disposed to create one. Strong as this conclusion stands upon the general language of :the constitution, it may still derive support from other sources. It is an historical fact, that this exposition of the constitution, ifixtending its appellate power to state courts, was, previous to its ladoption, uniformly and publicly avowed by its friends, and ad- mitted by its enemies, as the basis of their respective reasonings, Iboth in and out of the state conventions. It is an historical fact, Ithat at the time when the Judiciary Act was submitted to the •daliberations of the first congress, composed, as it was, not only •of smen of great learning and ability, but of men who had acted a piincipal part in framing, supporting, or opposing that consti- tution,, the same exposition was explicitly declared and admitted by ,thfi friends and by the opponents of that system. It is an his- itoricalifact, that the supreme court of the United States have, from 'time .to "time, sustained this appellate jurisdiction in a great variety •of cases, .brought from the tribunals of many of the most impor- tant States in the Union, and that no state tribunal has ever breathed a 'judicial doubt on the subject, or declined to obey the mandate df ithe supreme court, until the present occasion. This weight of contemporaneous exposition by all parties, this acquies- cence of .'.enlightened state courts, and these judicial decisions of GOHENS V. VIKGINIA, 627 tlie supreme court through so long a period, do, as we thifik, place the doctrine upon a foundation of authority which cannot be shaien, without delivering over the subject to perpetual and ir- remediable doujbts. . . . It is the opinion of the whole court, that the Judgment of the court of appeals of Virginia, rendered on the mandate in this cause, be reversed, and th€ judgment oi the district court, held at Winchester, be, and the same is hereby affirmed. [Me. Justice Johnson delivered a concurring opinion.] COHENS V. THE STATE OE TIRGMIA. 6 Wheaton, 264. Decided 1821. [The facts are sufficiently stated in the opinion of the court.] Marshall, C. J., delivered the opinion of the court. This is. a writ of error to a judgment rendered in the court of Hustings, for the, borough of.Kprfolk, on an information for sell- ing lottery tickets, contrary to an jict of the legislature of Vir- ginia. In the state court, the defendant claimed the protection bf an act Of congress. A case was agreed between the parties, which states the act of assembly on which the prosecution was founded, and the act of cdngi-ees on which the defendant relied, and concludes in these words: "If upon this case the court shall be 6i opinion that the acts of congress before mentioned were valid, and, on the tiTie construction of those acts, the lottery tickets sold by the defendants as af oresMd, might lawfully be sdd within the State of Virginia, notwithstatfding the act or statute of the general assembly of Virginia prohibiting such sale, then judgment to be entered ;f or the defendants. And if the court fehould be of opin- ion thalt the statute or act- of the general assembly of the State of Virginia, prohibiting such sale, is valid, notwithstanding the said acts of congress, then judgment to be entered that the defend- ants are guilty, and thafethe commonwealth recover against them one hundred dollars and costs." .Judgment was rendered against the defendants; aiid the court in which it was rendered being the highest court of the State in which the cause was cognizable, the recoi'd has been brought into this court by writ of error. 628 CASES ON CONSTITUTIONAL LAW. The defendant in error moveg to dismiss this writ, for want of jurisdiction. In support of this motion, three points have been made, and argued with the ability which the importance of the question merits. These points are: — 1. That a State is a defendant. 2. That no writ of error lies from this court to a state court. 3. The third point has been presented in different forms by the gentlemen who have argued it. The counsel who opened the cause said that the want of Jurisdiction was shown by the subject- matter of the case. The counsel who followed him said that juris- diction was not given by the Judiciary Act. The court has be- stowed all its attention on the arguments of both gentlemen, and supposes that their tendency is to show that this court has no jurisdiction of the case, or, in other words, has no right to review the judgment of the state court, because neither the constitution nor any law of the United States has been violated by that judg- ment. The questions presented to the court by the first two points made at the bar are of great magnitude, and may be truly said vitally to affect the Union. They exclude the inquiry whether the constitution and laws of the United States have been violated by the judgment which the plaintiffs in error seek to review; and maintain that, admitting such violation, it is not in the power of the government to apply a corrective. They maintain that the nation does not possess a department capable of restraining peace- ably, and by authority of law, any attempts which may be made, by a part, against the legitimate powers of the whole; and that the government is reduced to the alternative of submitting to such attempts, or of resisting them by force. They maintain that the constitution of the United States has provided no tribunal for the final construction of itself, or of the laws or treaties of the nation; but that this power may be exercised in the last resort by the courts of every State in the Union. That the constitution, laws, and treaties, may receive as many constructions as there are States^ and that this is not a mischief, or, if a mischief, is irre- mediable. These abstract propositions are to be determined; for he who demands decision without permitting inquiry, affirms that the decision he asks does not depend on inquiry. If such be the constitution, it is the duty of the court to bow with respectful submission to its provisions. If such be not the constitution, it is equally the duty of this court to say so; and COHENS V. VIRGINIA. 629 to perform tliat task whicli the American people liave assigned to the judicial department. 1. The first question to be considered is, whether the jurisdic- tion of this court is excluded by the character of the parties, one of them being a State, and the other a citizen of that State? The 3S section of the third article of the constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the Union in two classes of cases. In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends "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." This clause extends the jurisdiction of the court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended "controversies between two or more States, between a State and citizens of an- other State," "and between a State and foreign states, citizens, or subjects." If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these par- ties have a constitutional right to come into the courts of the Union. The counsel for the defendant in error have stated that the cases which arise under the constitution must grow out of those pro- visions which are capable of self-execution; examples of which are to be found in the second section of the fourth article, and in the tenth section of the first article. A case which arises under a law of the United States must, we are likewise told, be a right given by some act which becomes necessary to execute the powers given in the constitution, of which the law of naturalization is mentioned as an example. The use intended to be made of this exposition of the first part of the section, defining the extent of the judicial power, is not clearly understood. If the intention be merely to distinguish cases arising under the constitution, from those arising under a law, for the sake of precision in the application of this argument, these propositions will not be controverted. If it be to maintain that a ease arising under the constitution, or a law, must be one in which a party comes into court to demand something conferred on him by the constitution or a law, we think the construction 630 CASES ON CONSTITUTIONAL LAW. too narrow. A case in law or ©juity consists of the right of the one party, as well as of the other, and may truly be said to arise under the consffeitntion or a law of the United States, whenever its correct decision dep^ends on the construction of either. Congress seems to have intended to give its own construction of this part of the constitution^ in the 2Sth section of the Judiciary Act; and we perceive no reason to depart from- that construction. The jurisdiction of the court, then, being extended by the letter of the constitution to all cases arising under it, or under the laws of the United States, it follows that those who Would withdraw any case of this description from that jurisdiction, must sustain the exemption they claim on the spirit and true meaning of the constitution, which spirit and true meaning must be so apparent as to overrule the words which its framers have employed. The counsel for the defendant in error have undertaken to do this; and have laid down the general proposition^ that a sover- eign independent State is not suable, except by its own consent. This general proposition will not be controverted^ But its con- sent is not requisite in each particular case. It may be given in a general law. And if a Staite has surrendered any portion of its sovereignty, the question Whether a liability to suit be a part of this portion, depends on the instrument by which the surrender is made. If upon a just construction of that instrument; it shall appear that the State has submitted to be sued, then it has parted with this sovereign right of judging in every case on the justice of its oWn pretensions, and has intrusted that power to a tribunal in whose impartiality it confides. The American States, as well as the American people, have be- lieved a close and firm Union to be essential to their liberty and to their happiness. They have been taught by. experience, that this Union cannot exist without a government for the whole; and they have been taught by the same experience that this government would be a mere shadoW> that must disappoint all their hopes, unless invested with large portions of that sovereignty which be- longs to independent States. Under the influence of this opinion, and thus instructed by experience, the American people, in the conventions of their respective States, adopted the present consti- tution. If it could be doubted whether^ from its nature, it were not supreme in all cases where it is empowered to act, that doubt would be removed by the declaration that "this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the COHENS V. VIRGINIA. 631 authority of the United States, shallbe the supreme law of the land; and the judges in every State shall be bound thereby, any- thing in the constitution or laws of any State to the contrary not- 'Withstanding." This is the authoritative language of the American people; and, if gentlemen please, of the American States. It marks with lines too strong to be mistaken, the characteristic distinction between the government of the Union and those of the States. The gen- eral government, though limited as to its objects, is supreme with respect to those objects. This principle is a part of the constitu- tion; and if there be any who deny its necessity, none can deny its authority. To this supreme government ample powers are confided; aiid if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared that they are given "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common de-r fense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity." With the ample powers confided to this supreme government, for these interesting purposes, are connected many express and important limitations on the sovereignty of the States, which are inade for the same purposes. The powers of the Union on the great subjects of war, peace, and commerce, and on many otters, are in themselves limitations of the sovereignty of the States; but in addition to these, the sovereignty of the States is surrendered in many instances where the surrender can only operate to the benefit of the people, and where, perhaps, ho other power is con- ferred on congress than a conservative power to maintain the prin- ciples established in the constitution. The maintenance of these principles in their purity is certainly among the great duties of the government. One of the instruments by which this duty may be peaceably performed is the judicial department. It is author- ized to decide all cases, of every description, arising under the constitution or laws of the United States. Prom this general grant of jurisdiction, no exception is made of those cases in which a State may be a party. When we consider the situation of the government of the Union and of a State, in relation to each other; the nature of our constitution, the subordination of the state gov- ernments to the constitution; the great purpose for which juris- diction over all cases arising under the constitution and laws of the United States, is confided to the judicial department, are we at liberty to iiisert in this general grant, an exception of those 632 CASES ON CONSTITUTIONAL LAW. cases in which a State may be a party? Will the spirit of the con- stitution justify this attempt to control its words? We think it will not. We think a case arising under the constitution or laws of the United States, is cognizable in the courts of the Union, who- ever may be the parties to that case. . . . It is most true that this court will not take jurisdiction if it should not; but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one. . . . We think, then, that as the Constitution originally stood, the appellate jurisdiction of this court, in all cases arising under the constitution, laws, or treaties of the United States, was not ar- rested by the circumstance that a State was a party. This leads to a consideration of the 11th amendment. It is in these words: "The judicial power of the United States shall not be construed to extend to any suit in law or equity com- menced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign State." It is a part of our history, that, at the adoption of the con- stitution, all the States were greatly indebted; and the apprehen- sion that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so exten- sively entertained, this amendment was proposed in Congress, and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the na- tion, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or be- tween a State and a foreign state. The jurisdiction of the court COHENS V. VIRGINIA. 633 still extends to these cases; and in these a State may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prose- cuted by individuals, but not to those brought by States. The first impression made on the mind by this amendment is, that it was intended for those eases, and for those only, in which some demand against a State is made by an individual in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general in- terest might well be felt in leaving to a State the full power of consulting its convenience in the adjustment of its debts, or of , other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts, as to strip the gov- ernment of the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation. . . . Under the Judiciary Act,^ the effect of a writ of error is simply to bring the record into court, and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where, then, a State obtains a judgment against an individual, and the court rendering such judgment overrules a defense set up under the constitution or laws of the United States, the transfer of this record into the supreme court for the sole purpose of inquiring whether the judgment vio- lates the constitution of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State whose judgment is so far re-examined. Nothing is de- manded from the State. No claim against it of anv description is asserted or prosecuted. The party is not to be restored to the possession of anything. . . . He only asserts the constitu- tional right to have his defense examined by that tribunal whose province it is to construe the constitution and laws of the Union. . . • * 1 1 Stats, at Large, 73. 634 CASES ON CONSTITUTIONAL LAW, The point of view in which this writ of error, with its citation, has been considered unifonnly in the courts of the Umon, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the Judiciary Act does not authorize such suits. Yet writs of error, accompanied with citations, have uni- formly issued for the removal of judgments in favor of the United States into a superior court, where they have, like those in favor of an individual, been re-examined, and affirmed or reversed. It has never been suggested that such a writ of error was a suit against the United States, and therefore not within the jurisdic- tion of the appellatig court. It is, then, the opinion of the court, that the defendant who removes a judgment rendered against him by a state court into this court, for the purpose of re-examining the question whether that judgment be a violation of the constitution or laws of the United States, does hot commence or prosecute a suit against the State, whatever may be its opinion where the effect of the writ may be to restore the party to the possession of a thing which he demands. But should we in this be mistaken, the error does not affect the case now before the court. If this writ of error be a suit in the sense of the 11th amendment, it is not a suit commenced or prose- cuted "by a citizen of another State, or by a citizen or subject of any foreign state." It is not then within the amendment, but is governed entirely by the constitution as originally framed, and we have already seen that, in its origin, the judicial power was ex- tended to all cases arising under the constitution or laws of. the United States, without respect to parties. 2. The second' objection to the jurisdiction of the court is, that its appellate power cannot be exercised, in any case, over the judg- ment of a state court. This objection is sustained chiefly by argimients drawn from the supposed total separation of the judiciary of a State from that of the Union, and their entire independence of each other. The argument considers the federal judiciary as completely foreign to that of a State; and as being no more connected with it, in any respect whatever, than the court of a foreign State. If this hypothesis be just, the argument founded on it is equally so; but if the hypothesis be not supported by the constitution, the argu- ment fails with it. This hypothesis is not founded on any words in the constitu- COHENS V, VIRGINIA, &35 Man., wMffih. jniglit seem to: countenance it, bnt on the unreason- ableness of giving a contrary construction to words which seem to require it; and on the incompatibility of the application of the appellate jurisdiction to the judgments of state courts, with that constitutional relation which subsists between the government of the Union and the governments of those States which compose it. Let this uJireasonableness, this total incompatibility, be ex- amined. That the United States form, for many, and for most impor- tant purposes, a single nation, has not yet been denied. In wax^ we are one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are onej and the govern;^ ment which is alone capable of controlling and managing their interests, in all these respects, is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in. many respects; and to many pur- poses, a nation; and for all these, purposes her government is com- plete; to all these objects, it is competent; The people have de- clared, that in the exercise of all powers given for these objects, it is supreme. It can, then, in efEecting , these objects, legiti- mately control aU individuals or governments within the American territory. The constitution and laws of a State, so far as they are repugnant to the constitution and laws of the United States^ are absolutely void. These States are constituent parts of the United States. They are members of one great empire, — for some purposes sovereign, for some purposes subordinate. In a government so constituted, is it unreasonable that, the ju^ dicial power should be competent to give efficacy to the constitu- tional laws of the legislature? That department can decide on the validity oi the constitution or law of a State, if it be repugnant to the constitution or to a law of the United States. Is it unrea- sonable that it should also be empowered to decide on the judgr ment of a state tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a jugitification for controlling the words of the constitution? We think it is not. We think that in a government acknowl- edgedly supreme, with respect to objects of vital iuterest to the nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the state tribunals which may con- 636 CASES ON CONSTITUTIONAL LAW. travene the constitution or laws of the United States, is, we believe, essential to the attainment of those objects. The propriety of intrusting the construction of the constitution, and laws made in pursuance thereof, to the judiciary of the Union, has not, we believe, as yet, been drawn into question. It seems to be a corollary from this political axiom, that the federal courts should either possess exclusive jurisdiction in such cases, or a power to revise the judgments rendered in them by the state tribunals. If the federal and state courts have concurrent juris- diction in all cases arising under the constitution, laws, and treaties of the United States; and if a case of this description brought in a state court cannot be removed before judgment, nor revised after judgment, then the construction of the constitution, laws, and treaties of the United States is not confided particularly to their judicial department, but is confided equally to that de- partment and to the state courts, however, they may be consti- tuted. "Thirteen independent courts," says a very celebrated statesman (and we have now more than twenty such courts), "of final jurisdiction over the same causes, arising upon the same laws, is a hydra of government, from which nothing but contradiction and confusion can proceed." Dismissing the unpleasant suggestion, that any motives which may not be fairly avowed, or which ought not to exist, can ever influence a State or its courts, the necessity of uniformity, as well as correctness in expounding the constitution and laws of the United States, would itself suggest the propriety of vesting in some single tribunal the power of deciding, in the last resort, all cases in which they are involved. We are not restrained, then, by the political relations between the general and state governments, from construing the words of the constitution, defining the judicial power, in their true sense. We are not bound to construe them more restrictively than they naturally import. They give to the supreme court appellate jurisdiction in all cases arising under the constitution, laws, and treaties of the United States. The words are broad enough to comprehend all cases of this description, in whatever court they may be decided. . . . Let the nature and objects of our Union be considered; let the great fundamental principles on which the fabric stands be ex- amined; and we think the result must be that there is nothing so extravagantly absurd in giving to the court of the nation the power of revising the decisions of local tribunals, on questions which UNITED STATES v. TEXAS. 637 affect the nation, as to require that words which import this power should be restricted by a forced construction. . . . Motion Denied. The cause was thereupon argued on the merits. . . . Judgment Affirmed. UNITED STATES t. TEXAS. 143 U. S., 621. Decided 1892. [The facts are suificiently stated in the opinion of the court.] Mh. Justice Hahlan delivered the opinion of the court. This suit was brought by original bill in this court pursuant to the act of May 2, 1890, providing a temporary government for the Territory of Oklahoma. The 25th section recites the existence of a controversy between the United States and the State of Texas as to the ownership of what is designated on the map of Texas as Greer County, and provides that the act shall not be construed to apply to that county until the title to the same has been adjudi- cated and determined to be in the United States. In order that there might be a speedy and final judicial determination of this controversy the Attorney-General of the United States was author- ized and directed to commence and prosecute on behalf of the United States a proper suit in equity in this court against the State of Texas, setting forth the title of the United States to the country lying between the Forth and South Forks of the Eed Eiver where the Indian Territory and the State of Texas adjoin, east of the one hundredth degree of longitude, and claimed by the State of Texas as within its boundary. 26 Stat., 81, 92, c. 182, § 25. The State of Texas appeared and filed a demurrer, and, also, an answer denying the material allegations of the bill. The case is now before the court only upon the demurrer, the principal grounds of which are: That the question presented is political in its nature and character, and not susceptible of judicial deter- mination by this court in the exercise of its jurisdiction as con- ferred by the Constitution and laws of the United States; that it is not competent for the general government to bring suit against a State of the Union in one of its own courts, especially when the right to be maintained is mutually asserted by the United States and the State, namely, the ownership of certain designated terri- tory; and that the plaintiff's cause of action, being a suit to recover 638 CASES ON CONSTITXJTIQNAL I/AW. real property, is legal aud not equitafele, amd, censequently, so much of the act of .May 2, 18-90, as authorizes aad directs the prosecution of a suit in equity to determine the rights of the United States to the territory in question is unconstitutional and void. . . . [Here follows a history of the conflicting claims of the United States and Texas.] The bill alleges thait the State of Texas, without right, claims, has taken possession of, and endeavors to extend its laws and juris- diction over, the disputed territory, in violation of -the treaty rights of the United States; that, during the year 1887, it gave public notice of its purpose to survey and place uponrthe market for sale, and otherwise dispose of, that territory; and that, in consequence of its proceediitg- to eject bona fide settlers from certain portions thereof. President Cleveland, by proclamation issued December 30, 1887, warned all. persons, whether claiming to act as officers of the county of Greer, or otherwise, against: selling or disposing of, or attempting to sell or dispose of, any of said lands, or from exercis- ing or attempting to exercise any au/thority over th€m,and "against purchasing any part of said territory from any person or persons whatever." 25 Stat., ; 1483. The relief asked is a decree det-eraiining the true line between the United States and the State of Texas, and whether the land constituting what is called "Greer County" is within the boundary and jurisdiction of the United States- or of the State of Texas. The government prays that its rights, as asserted in the bill, be established,, and that it have such other relief as the nature of the case may require. In support of the contention that the ascertainment of the boundary between a Territory of the United. States and one of the States of the Union is political in its nature and character, and not susceptible of judicial determination, the defendant cites Fos- ter V. ISTeilson, 2 Pet., 353, 307, 309; Cherokee Nation v. Georgia, 5 Pet., 1, 21; United States v. Arredondo, 6 Pet., 691, 711; and Garcia v. Lee, 12 Pet., 511, 517. In Foster v. Neilson, which was an action to recover certain lands in Louisiana, . the controlling question was as to whom the country between the Iberville and the Perdido rightfully belonged at the time the title of the plaintiff in that case was acquired. The United States, the court said, had perseveringly insisted that by the treaty of St. Udefonso, made October 1, 1800, Spaitt ceded the disputed territory as part of Louisiana to France, and. that France by the treaty of Paris of 1803 ceded it to the United States. Spain insisted that the cession to France comprehended only the territory UNITED STATES v. TEXAS. 639 which was Sit •that time denomimated LouisiaBa, After examining various artieles- of the treaty of St. Ild^ef onso, Chief Justiee Mar- shall, speaking for the court, ^id: "In a controversy between two nations concerning national boundary, it is scarcely possible that the courts of either should refuse to aMde by'the measures adopted by its own govermneiit. There being no common tribunal to de- cide between them, each dtetermiaeB for itself on its own Tights> and if they cannot adjust their differences peaceably, th'e right remains with the strongest. The jadieiary is not that departm«nt of the government to which the assertion of its interests against foreign powers is eonSded; and its duty commonly is to decide upon individual irights, according to those principles which -the political departmenfte of the nation have esfeablished. If the course of the nation has been a plain one, its courts would hesitate to pronounce it erroneous." Again: "After these acts of sovereign power over the territory in dispute, assertiiog the American con- struction of the treaty, by whidi the government claims it, to maintain the opposite construction in its own courts would cer- tainly be an anomaly in the history ^and practice of nations. If those departments Which are trusted vrith the foreign intercourse of the nation, which assert and maintain its interests 'against for- eign powers, have unequivocally asserted its rights of dominion over a country of which it is in possessi-sn, 'and which it claims under a treaty; if 'the legifelature has acted on the construction thus asserted, it is not in its own courts 'that this construction is to be denied. A question like this respecting the, boundaries of nations, is, as has been truly said, more a political than a legal question; and, in its discussion, the' courts of every country must respect the pronounced will of the legisktnre." In United States-v.Arredondo' the court, referring to Foster v. Neilson, said: "This court did not deem' the settlement of boun- daries a judicial butapoliticalquestion— ^that it was not its dtity to lead, but' to follow the action of the other departments of the government." The same principles were recognized in Cherolcee Nation v. Georgia and' G-areia v. Lee. These authorities do not control the present ease. They relate to questions of bonndary between independent nations, and have no application to- a question of that character -arising between the General Government and one of the States' composing the Union, or between two States' of the Union. By the Articles of Confed- eration, Congress was made "the last Tesort on appeal in all dis- putes and differences" then subsisting or which thereafter might arise "between two or more Sitates concerning boundary, jurisdie- 640 CASES ON CONSTITUTIONAL LAW. tion, or any other cause whatever;" the authority so conferred to be exercised by a special tribunal to be organized in the mode pre- scribed in those Articles, and its judgment to be final and con- clusive. Art. 9. At the time of the adoption of the Constitution, there existed, as this court said in Ehode Island v. Massachusetts, 13 Pet., 657, 723, 734, controversies between eleven States, in re- spect to boundaries, which had continued from the first settle- ment of the colonies. The necessity for the creation of some tri- bunal for the settlement of these and like controversies that might arise, under the new government to be formed, must, therefore, have been perceived by the framers of the Constitution, and, con- sequently, among the controversies to which the judicial power of the United States was extended by the Constitution, we find those between two or more States. And that a controversy between two or more States, in respect to boundary, is one to which, under the Constitution, such judicial power extends, is no longer an open question in this court. The eases of Ehode Island v. Massachu- setts, 13 Pet., 657; New Jersey v. New York, 5 Pet., 384, 390; Mis- souri V. Iowa, 7 How., 660; Florida v. Georgia, 17 How., 478; Alabama v. Georgia, 23 How., 505; Virginia v. West Virginia, 11 Wall., 39, 55; Missouri v. Kentucky, 11 Wall., 395; Indiana v. Kentucky, 136 U. S., 479; and Nebraska v. Iowa, ante, 359, were all original suits, in this court, for the judicial determination of dis- puted boundary lines between States. In New Jersey v. New York, 5 Pet., 284, 390, Chief Justice Marshall said: "It has then been settled by our predecessors, on great deliberation, that this court may exercise its original jurisdiction in suits against a State, under the authority conferred by the Constitution and existing acts of Congress." And in Virginia v. West Virginia, it was said by Mr. Justice Miller to be the established doctrine of this court, "that it has jurisdiction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated, because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render, affects the territorial limits of the political jurisdiction and sovereignty of the States which are parties to the proceeding." So, in Wisconsin v. Pelican Ins. Co., 137 U. S., 265, 287, 388: "By the Constitution, therefore, this court has original .jurisdiction of suits brought by a State against citizens of another State, as well as of controversies between two States. . . . As to 'controversies between two or more States.' The most numerous class of which this court has enter- tained jurisdiction is that of controversies between two States as UNITED STATES v. TEXAS. 641 to the boundaries of their territory, such as were determined be- fore the Eevolution by the King in Council, and under the Articles of Confederation (while there was no national judiciary) by com- mittees or commissioners appointed by Congress." In view of these cases, it cannot, with propriety, be said that a question of boundary between a Territory of the United States and one of the States of the Union is of a political nature, and not susceptible of judicial determination by a court having jurisdic- tion of such a controversy. The important question therefore is, whether this court can, under the Constitution, take cognizance of an original suit brought by the United States against a State to determine the boundary between one of the Territories and such State. Texas insists that no such jurisdiction has been con- ferred upon this court, and that the only mode in which the pres- ent dispute caxi be peaceably settled is by agreement, in some form, between the United States and that State. Of course, if no such agreement can be reached — and it seems that one is not probable — and if neither party will surrender its claim of authority and juris- diction over the disputed territory, the result, according to the defendant's theory of the Constitution, must be that the United States, in order to effect a settlement of this vexed question of boundary, must bring its suit in one of the courts of Texas — ^that State consenting that its courts may be open for the assertion of claims against it by the United States—or that, in the end, there must be a trial of physical strength between the government of the Union and Texas. The first alternative is unwarranted both by the letter and spirit of the Constitution. Mr. Justice Story has well said: 'It scarcely seems possible to raise a reasonable doubt as to the propriety of giving to the national courts jurisdiction of cases in which the t[nited States are a party. It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts. Unless this power were given to the United States, the enforcement of all their rights, powers, contracts and privileges in their sovereign capacity would be at the mercy of the States. They must be enforced, if at all, in the State tribunals." Story Const., § 1674. The second alternative, above mentioned, has no place in our constitutional system, and cannot be contemplated by any patriot except with feelings of deep concern. The cases in this court show that the framers of the Constitution did provide, by that instrument, for the judicial determination of all cases in law and equity betweeti two or more States, including those involving questions of boundary. Did they omit to provide 41 642 CASES ON CONSTITUTIONAL LAW. for the judicial determinaition of controversies arising between the United States and one or more of the States of the Union? This question is in efEect answered by United States v. North Caro- lina, 136 U. S., 211. That was an action of debt brought in this court by the United States against the State of North Carolina, upon certain bonds issued by that State. The State appeared, the case was determined here upon its merits, and judgment was ren- dered for the State. It is true that no question was made as to the jurisdiction of this court, and nothing was therefore said in the opinion upon that subject. But it did not escape the attention of the court, and the judgment would not have been rendered except upon the theory that this court has original jurisdiction of a suit by the United States against a State. As, however, the question of jurisdiction is vital in this case, and is distinctly raised, it is proper to consider it upon its merits. . . . [Here follows a recital of art. 3, § 3, of the Constitution, and the 11th amend- ment.] It is apparent upon the face of these clauses that in one class of cases the jurisdiction of the courts of the Union depends "on the character of the cause, whoever may be the parties," and, in the other, on the character of the parties, whatever may be the subject of controversy. Cohens v. Virginia, 6 Wheat., 264, 378, 393. The present suit falls in each class, for it is, plainly, one arising under the Constitution, laws and treaties of the United States, and, also, one in which the United States is a party. It is, there- fore, one to which, by the express words of the Constitution, the judicial power of the United States extends. That a Circuit Court of the United States has not jurisdiction, under existing statutes, of a suit by the United States against a State, is clear; for by the Eevised Statutes it is declared — as was done by the Judiciary Act of 1789 — ^thait "the Supreme Court shall have exclusive jurisdic- tion of all controversies of a civil nature where a State is a party, except between a State and its citizens, or between a State and citizens of other States or aliens, in which latter cases it shall have original, but not exclusive, jurisdiction." Rev. Stat., § 687; Act of September 24, 1789, c. 30, § 13; 1 Stat., 80. Such exclusive jurisdiction was given to this court, because it best comported with the dignity of a State, that a case in which it was a party should be determined in the highest, rather than in a subordinate judicial tribunal of the nation. Why then may not this court take original cognizance of the present suit involving a question of boundary between a Territory of the United States and a State? The words in the Constitution, "in aU eases ... in which UNITED STATES v. TEXAS. 643 a State shall be party, the Supreme Court shall have original juris- diction/' necessarily refer to all eases mentioned in the preceding clause in which a State may be made, of right, a party defendant, or in which a State may, of right, be a party plaintiff. It is ad- mitted that these words do not refer to suits brought against a State by its own citizens or by citizens of other States, or by citi- zens or subjects of foreign Startes, even where such suits arise under the Constitution, laws and treaties of the United States, because the judicial power of the United States does not extend to suits of individuals against States. Hans v. Louisiana, 134 U. S., 1, and authorities there cited; North Carolina v. Temple, 134 U. S., 23, 30. It is, however, said that the words last quoted refer only to suits in which a State is a party, and in which, also, the opposite party is another State of the Union or a foreign State. This cannot be correct, for it must be conceded that a State can bring an original suit in this court against a citizen of another State. Wisconsin v. Pelican Ins. Co., 127 U. S., 265, 287. Be- sides, unless a State is exempt altogether from suit by the United States, we do not perceive upon what sound rule of construction suits brought by the United States in this court — especially if they be suits the correct decision of which depends upon the Consiti- tution, laws or treaties of the United States — are to be excluded from its original jurisdiction as defined in the Constitution. That instrument extends the judicial power of the United States "to all cases," in law and equity, arising xmder the Constitution, laws and treaties of the United States, and to controversies in which the United States shall be a party, and confers upon this court original jurisdiation "in all cases" "in which a State shall be party," that is, in all cases mentioned in the preceding clause in_ which a State may, of right, be made a party defendant, as well as in all cases in which a State may, of right, institute a suit in a court of the United States. The present case is of the former class. We cannot assume that the framers of the Constitution, while extending the judicial power of the United States to con- troversies between two or more States of the Union, and between a State of the Union and foreign States, intended to exempt a State altogether from suit by the General Government. They could not have overlooked the possibility that controversies, capable of judi- cial solution, might arise between the United States and some of the States, and that the permanence of the Union might be en- dangered if to some tribunal was not intrusted the power to deter- mine them according to the recognized principles of law. And to what tribunal could a trust so momentous be more appropriately 644 CASES ON CONSTITUTIONAL LAW. committed than to that which the people of the United States, in order to form a more perfect Union, establish justice and insure domestic tranquillity, have constituted with authority to speak for all the people and all the States, upon questions before it to which the judicial power of the nation extends? It would be difficult to suggest any reason why this court should have jurisdiction to determine questions of boundary between two or more States, but not jurisdiction of controversies of like character between the United States and a State. . . . [Here is given an extract from Hans v. Louisiana, 134 U. S., 1.] That case and others in this court relating to the suability of States, proceeded upon the broad ground that "it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." The question as to the suability of one government by another government rests upon wholly difiEerent grounds. Texas is not called to the bar of this court at the suit of an individual, but at the suit of the government established for the common and equal benefit of the people of all the States. The submission to judicial solution of controversies arising between these two governments, "each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other," McCulloch v. State of Maryland, 4 Wheat., 316, 400, 410, but both subject to the supreme law of the land, does no violence to the inherent nature of sovereignty. The States of the Union have agreed, in the Constitution, that the judicial power of the United States shall extend to all cases arising under the Constitution, laws and treaties of the United States, withouit regard to the character of the parties (excluding, of course, suits against a State by its own citizens or by citizens of other States, or by citizens or subjects of foreign States), and equally to con- troversies to which the United States shall be a party, without regard to the subject of such controversies, and itiat this court may exercise original jurisdiction in all such cases, "in which a State shall be party," without excluding those in which the United States may be the opposite party. The exercise, therefore, by this court, of such original jurisdiction in a suit brought by one State against another to determine the boundary line between them, or in a suit brought by the United States against a State to deter- mine the boundary between a Territory of the United States and that State, so far from infringing, in either case, upon the sov- ereignty, is with the consent of the State sued. Such consent was UNITED STATES v. TEXAS. 645 giren ty Texas when admitted into the Union upon an equal foot- ing in all respects with the other States. We are of opinion that this court has jurisdiction to determine the disputed question of boundary between the United States and Texas. It is contended that, even if this court had jurisdiotion, the dis- pute as to boundary must be determined in an action at law, and that the act of Congress requiring the institution of this suit in equity is unconstitutional and void, as, in effect, declaring that legal rights shall be tried and determined as if they were equitable rights. [Here follows a discussion of Fowler v. Lindsay, 3 Dall., 411, and Ehode Island v. Massachusetts, 13 Pet., 657.] In view of these precedents, it is scarcely necessary for the court to exam- ine this question anew. Of course, if a suit in equity is appropriate for determining the boundary between two States, there can be no objection to the present suit as being in equity and not at law. It is not a suit simply to determine the legal title to, and the ownership of, the lands constituting Greer County. It involves the larger question of governmental authority and jurisdiction over that territory. The United States, in effect, asks the specific execution of the terms of the treaty of 1819, to the end that the disorder and public mischiefs that will ensue from a continuance of the present condition of things may be prevented. The agree- ment, embodied in the treaty, to fix the lines with precision, and to place landmarks to designate the limits of the two contracting nations, could not well be enforced by an action at law. The bill and amended bill make a case for the interposition of a court of equity. Demurrer overruled. Mk. Chief Justice Fuller, with whom concurred Mb. Justice Lamae, dissenting. Mh. Justice Lamae and myself are unable to concur in the decision just announced. This court has original jurisdiction of two classes of cases only, those affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party. The judicial power extends to "controversies between two or more States;" "between a State and citizens of another State;" and "between a State or the citizens thereof, and foreign States, citizens or subjects." Our original jurisdiction, which depends solely upon the character of the parties, is confined to the cases 646 CASES ON CONSTITUTIONAL LAW. enumerated, in which a State may be a party, and this is not one of them. The judicial power also extends to controversies to which the United States shall be a party, but such controversies are not in- cluded in the grant of original jurisdiction. To the controversy here the United States is a party. We are of opinion, therefore, that this case it not within the original jurisdiction of the court. XV. POLITICAL QUESTIONS. LUTHEE V. BORDEN. 7 Howard, 1. Decided "1848. The first of these cases came up by a writ of error, tlie second upon a certificate of division of opinion by the Judges of the cir- cuit court of the United States for the district of Rhode Island. The first case is stated in the opinion of the court. The second requires no statement, as it went off, for want of jurisdiction. . . . Tanbt, C. J., delivered the opinion of the court. This case has arisen out of the unfortunate political differ- ences which agitated the people of Rhode Island in 1841 and 1843. It ifi an aotion of trespass brought by Martin Luther, the plaint- iff in error, against Luther M. Borden and other defendants, in the circuit court of the United States for the district of Rhode Island, for breaking and entering the plaintiff's house. The de- fendants justify upon the ground that large numbers of men were assembled in different parts of the State for the purpose of over- throwing the government by military force, and were actually levying war upon the State; that, in order to defend itself from this insurrection, the State was declared by competent authority to be under martial law; that the plaintiff was engaged in the in- surrection; and that the defendants, being in the military service of the State, by command of their superior officer, broke and entered the house and searched the rooms for the plaintiff, who was supposed to be there concealed, in order to arrest him, doing as little damage as possible. The plaintiff replied, that the tres- pass was committed by the defendants of their own proper wrong, and without any such cause; and upon the issue joined on this replication, the parties proceeded to trial. . . . The existence and authority of the government under which the defendants acted, was called in question; and the plaintiff insists, that, before the acts complained of were committed, that government had been dis- 647 648 CASES ON CONSTITUTIONAL LAW. placed and annulled by the people of Rhode Island, and that the plaintiff was engaged in supporting the lawful authority of the State, and the defendants themselves were in arms against it. . . The fourth section of the fourth article of the constitution of the United States provides that the United States shall guarantee to every State in the Union a republican form of government, and shall protect each of them against invasion; and on the applica- tion of the legislature or of the executive (when the legislature cannot be convened) against domestic violence. Under this article of the constitution it rests with congress to decide what government is the established one in a State. For as the United States guarantee to each State a republican govern- ment, congress must necessarily decide what government is estab- lished in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the gov- ernment under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the gov- ernment, and could not be questioned in a judicial tribunal. It is true that the contest in this case did not last long enough to bring the matter to this issue; and as no senators or representatives were elected under the authority of the government; of which Mr. Dorr was the head, congress was not called upon to decide the con- troversy. Yet the right to decide is placed there, and not in the courts. So, too, as relates to the clause in the above-mentioned article of the constitution, providing for cases of domestic violence. It rested with congress, too, to determine upon the means proper to be adopted to fulfill this guarantee. They might, if they had deemed it most advisable to do so, have placed it in the power of a court to decide when the contingency had happened which re- quired the federal government to interfere. But congress thought otherwise, and no doubt wisely; and by the act of February 28, 1795, provided that, "in case of an insurrection in any State against the government thereof, it shall be lawful for the Presi- dent of the United States, on application of the legislature of such State or of the executive, when the legislature cannot be con- vened, to call forth such number of militia of any other State or States, as may be applied for, as he may judge sufRcient to sup- press such insurrection." By this act, the power of deciding whether th6 exigency had arisen upon which the government of the United States is bound LUTHER V. BORDEN. 649: to interfere, is giyen to the President. He is to act upon the appli- cation of the legislature, or of the executive, and consequently he must determine what body of men constitute the legislature, and who is the governor, before he can act. The fact that both parties claim the right to the government, cannot alter the case, for both cannot be entitled to it. If there is an armed conflict, like the one of which we are speaking, it is a case of domestic violence, and one of the parties must be in insurrection against the lawful gov- ernment. And the President must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he^ can perform the duty imposed upon him by the act of congress. After the Pregideiit has acted and called out the militia, is. a circuit court of the United States authorized to inquire whether, his decision was right? Could the court, while the parties were actually contending in arms for the possession of the government, call witnesses before it, and inquire which party represented a ma- jority of the people? If it could, then it would become the duty of the court (provided it came to the conclusion that the President had decided incorrectly) to discharge those who were arrested or detained by the troops in the service: of the United States, or the government which the President was endeavoring to maintain. If the judicial power extends so far, the guarantee contained in the constitution of the United States is a guarantee of anarchy, and not of order. Yet if this right does:not reside in the courts when the conflict is raging — ^if the judicial power is, at that time, bound to follow the decision of the political, it must be equally bound when the contest is over. It cannot, when peace is restored, pun- ish as offenses and crimes, the acts which it before recognized, and was bound to recognize, as lawful. It is true that in this case the militia were not called out by the President. But upon, the application of the governor under the charter government, the President recognized him as the executive power of the State, and took, measures to call out the mUitia to support his authority, if it should be found necessary for the general government to interfere; and it is admitted in the argument that it was, the knowledge of this decision that put an eud to the armed opposition to the charter government, and pre- vented any further efforts to establish by force the proposed con- stitution. The interference of the President, therefore, by an- nouncing his determination, was as effectual as. if the militia had been assembled under his orders. And it, should,, be equally au- thpritative. For certainly no cpurtof the United States, with a 650 CASES ON CONSTITUTIONAL LAW. knowledge of this decision, would have been justified in recogniz- ing the opposing party as the lawful government, or in treating as wrong-doers or insurgents the officers of the government which the President had recognized, and was prepared to support by an armed force. In the case of foreign nations, the government ac- knowledged by the President is always recognized in the courts of justice. And this principle has been applied by the act of congress to the sovereign States of the Union. It is said that this power in the President is dangerous to liberty, and may be abused. All power may be abused if placed ia un- worthy hands. But it would be difficult, we think, to point out any other hands in which this power would be more safe, and at the same time equally effectual. When citizens of the same State are in arms against each other, and the constituted authorities unable to execute the laws, the interposition of the United States must be prompt, or it is of little value. The ordinary course of proceedings in courts of justice would be utterly unfit for the crisis. And the elevated office of the President, chosen as he is by the people of the United States, and the high responsibility he could not fail to feel when acting in a case of so much moment, appear to furnish as strong safeguards against a wilful abuse of power as human prudence and foresight could well provide. At all events, it is conferred upon him by the constitution and laws of the United States, and must, therefore, be respected and en- forced in its judicial tribunals. A question very similar to this arose in the case of Martin v. Mott, 13 Wheat., 29-31. The first clause of the first section of the act of February 28, 1795, of which we have been speaking, author- izes the President to call out the militia to repel invasion. It is the second clause ia the same section which authorizes the call to suppress an insurrection against a state government. The power given to the President in each case is the same, with this differ- ence only, that it cannot be exercised by him in the latter case, except upon the application of the legislature or executive of the State. The case above mentioned arose out of a call made by the President, by virtue of the power conferred by the first clause; and the court said that "whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of cer- tain facts, it is a sound rule of construction that the statute con- stitutes him the sole and exclusive judge of the existence of those facts." The grounds upon which that opinion is maintained are set forth in the report, and, we think, are conclusive. The same principle applies to the case now before the court. Undoubtedly, LUTHER V. BORDEN. 651 if the President, in exercising this power, shall fall into error, or invade the rights of the people of the State, it would be in the power of congress to apply the proper remedy. But the courts must administer the law as they find it. . . . The remaining question is, whether the defendants, acting under military orders issued under the authority of the government, were justified in breaking and entering the plaintiff's house. In rela- tion to the act of the legislature declaring martial law, it is not necessary in the case before us to inquire to what extent, nor under what circumstances, that power may be exercised by a State. Un- questionably, a military government, established as the perma- nent government of the State, would not be a republican govern- ment, and it would be the duty of congress to overthrow it. But the law of Ehode Island evidently contemplated no such govern- ment. It was intended merely for the crisis, and to meet the peril in which the existing government was placed bv the armed resist- ance to its authority. It was so understood and construed by the state authorities. And unquestionably, a State may use its mili- tary power to put down an armed insurrection, too strong to be controlled by the civil authority. The power is essential to the existence of every government, essential to the preservation of order and of free institutions, and is as necessary to the States of this Union, as to any other government. The State itself must determine what degree of force the crisis demands. And if the government of Ehode Island deemed the armed opposition so for- midable, and so ramified throughout the State as to require the use of its military force and the declaration of martial law, we see no ground upon which this court can question its authority. It was a state of war, and the established government resorted to the rights and usages of war to maintain itself, and to overcome the unlawful opposition. And in that state of things, the officers engaged in its military service might lawfully arrest any one, who, from the information before them, they had reasonable grounds to believe was engaged in the insurrection, and might order a house to be forcibly entered and searched, when there were reason- able grounds for supposing he might be there concealed. Without the power to do this, mariial law and the military array of the government would be merer parade, and rather encourage attack than repel it. No more force, however, can be used than is neces- sary to accomplish the object. And if the power is exercised for the purposes of oppression, or any injury wilfully done to person or property, the party by whom, or by whose order, it is commit- ted, would undoubtedly be answerable. . . . 653 CASES ON CONSTITUTIONAL LAW. Much of the argument on the part of the plaintifE turned upon political rights and political questions, upon which the court has been urged to express an opinion. "We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the state sovereignties, and of the legislative and execu- tive branches of the federal government, and of determining whether they are beyond the limits of power marked out f oi them respectively by the constitution of the United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in diseu^ions- which properly belong to other forums. No one, we believe, has ever doubted the propo- sition, that, according to the institutions of this country, the sov- ereignty in every State resides in the people of the State, and that they may alter and change their form of government at their .own pleasure. But whether they have changed , it or not, by abolishing an old government, and establishing a new one in its place, is a question to be settled by the political power. And when that power has decided, the courts are bound to take notice of its decision, and to follow it. The judgment of the circuit court must, therefore, ie affirmed. STATE OP MISSISSIPPI t. JOHNSON, President. 4 Wallace, 475. Decided 1866. This was a motion made by Messrs. Sharkey and E. J. Walker, on behalf of the State of Mississippi, for leave to file a bill in the name of the State praying this court perpetually to enjoin and restrain Andrew Johnson, a citizen of the State of Tennessee and President of the United States, and his offieera and agents appointed for that purpose, and especially E. 0. C. Ord, assigned as military commander of the district where the State of Missis- sippi is, from executing or in any manner carrying out two acts of Congress named in the bill, one "An act for the more efficient government of the rebel states," passed March 2d, 1867, not- withstanding the President's veto of it as unconstitutional, and MISSISSIPPI V. JOHNSON. 653 the other an act supplementary to it, passed in the same way March 23d, 1867; acts commonly called the Eeeonstmction Acts. The former of these acts, reciting that no legal State governments or adequate protection for lif^ or property now exists in the rehel States of Virginia, North Carolina, South Carolina, Georgia, Missis- sippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and that it was necessary that peace and good order should be enforced in them until loyal and republican State governments could be legally established, divided the States named into five military districts, and made it the duty of the President to assign to each one an officer of the army, and to detail a sufficient military force to enable him to perform his duties and enforce his authority within his district. It made it the duty of this officer to protect all persons in their rights, to suppress insurrection, disorder, vio- lence, and to punish, or cause to be punished, all disturbers of the public peace and criminals, either through the local civil tribunals or through military commissions, which the act authorized. It provided, further, that on the formation of new constitutions and certain conditions which the act prescribed, the States respectively shall be declared entitled to representation in Congress and the preceding part of the act become inoperative; and that until they were so admitted any civil governments which might exist in them should be deemed provisional only, and subject to the paramount authority of the United States, at any time to abolish, modify, control, or supersede it. The second of the two acts related chiefly to the registration of voters who were to form the new constitutions of the States in question. The bill set out the political history of Mississippi so far as related to its having become one of the United States; and "that forever after it was impossible for her people, or for the State in its corporate capacity, to dissolve that connection with the other States, and that any attempt to do so by secession or otherwise was a nullity;" and she "now solemnly asserted that her connec- tion with the Federal government was not in anywise thereby de- stroyed or impaired;" and she averred and charged "that the Con- gress of the United States cannot constitutionally expel her from the Union, and that any attempt which practically does so is a nullity." . . . [Here follows an extract from the bills.] It then charged that, from information and belief, the said Andrew Johnson, President, in violation of the Constitution, and in violation of the sacred rights of the States, would proceed, not* withstanding his vetoes, and as a mere ministerial duty, to the 65i CASES ON CONSTITUTIONAL LAW. execution of said aets, as though they were the law of the land, which the vetoes prove he would not do if he had any discretion, or that in doing so he performed anything more than a mere ministerial duty; and that with the view to the execution of said acts he had assigned General E. 0. C. Ord to the command of the States of Mississippi and Arkansas. Upon an intimation made a few days before by Mr. Sharkey, of his desire to file this bill, the Attorney-General objected to it in limine, as containing matter not fit to be received. The Chief Justice then stated that while as a general thing a motion to file a bill was granted as of course, yet if it was suggested that the bill contained scandalous or impertinent matter, or was in other re- spects improper to be received, the court would either examine the bill or refer it to a master for examination. The only matter, therefore, which would now be considered was the question of leave to file the bill The Chief Justice delivered the opinion of the court. . . . A motion was made, some days since, in behalf of the State of Mississippi, for leave to file a bill in the name of the State, praying this court to perpetually enjoin and restrain Andrew Johnson, President of the United States, and E. 0. C. Ord, general commanding in the District of Mississippi and Arkansas, from executing, or in any manner carrying out, certain aets of Con- gress therein named. The acts referred to are those of March 2d, and March 33d, 1867, commonly known as the Eeconstruction Acts. The Attorney-General objected to the leave asked for, upon the ground that no bill which makes a President a defendant, and seeks an injunction against him to restrain the performance of his duties as President, should be allowed to be filed in this court. This point has been fully argued, and we will now dispose of it. "We shall limit our inquiry to the question presented by the objection, without expressing any opinion on the broader issues discussed in argument, whether, in any case, the President of the United States may be required, by the process of this court, to perform a purely ministerial act under a positive law, or may be held amenable, in any case, otherwise than by impeachment for crime. The single point which requires consideration is this: Can the President be restrained by injunction from carrying into effect an act of Congress alleged to be unconstitutional? MISSISSIPPI V. JOHNSON. 655 It is assumed by the counsel for the State of Mississippi, that the President, in the execution of the Reconstruction Acts, is re- quired to perform a mere ministerial duty. In this assumption there is, we think, a confoimding of the terms ministerial and executive, which are by no means equivalent in import. A ministerial duty, the performance of which may, in proper cases, be required of the head of a department, by judicial process, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under conditions admitted or proved to exist, and imposed by law. The case of Marbury v. Madison, Secretary of State,^ furnishes an illustration. A citizen had been nominated, confirmed, and appointed a justice of the peace for the District of Columbia, and his commission had been made out, signed, and sealed. Nothing remained to be done except delivery, and the duty of delivery was imposed by law on the Secretary of State. It was held that the performance of this duty might be enforced by mandamus issuing from a court having jurisdiction. So, in the case of Kendall, Postmaster-General, v. Stockton & Stokes,^ an act of Congress had directed the Postmaster-General to credit Stockton & Stokes with such sums as the Solicitor of the Treasury should find due to them; and that ofiicer refused to credit them with certain sums, so found due. It was held that the crediting of this money was a mere ministerial duty, the per- formance of which might be judicially enforced. In each of these cases nothing was left to ^discretion. There was no room for the exercise of judgment. The law required the per- formance of a single specific act; and that performance, it was held, might be required by mandamus. Very different is the duty of the President in the exercise of the power to see that the laws are faithfully executed, and among these laws the acts named in the bill. By the first of these acts he is required to assign generals to command in the several mili- tary districts, and to detail sufficient military force to, enable such ofiicers to discharge their duties under the law. By the sup- plementary acts, other duties are imposed on the several command- ing generals, and these duties must necessarily be performed under the supervision of the President as commander-in-chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political. An attempt on the part of the judicial department of the gov- ernment to enforce the performance of such duties by the Presi- 1 1 Cranch. 137. 2 12 Peters, 527. 656 CASES ON CONSTITUTIONAL LAW. dent migbt be justly characterized, in the language of Chief Jus- tice Marshall, as "an absurd and excessive extravagance." It is true that in the instance before us the interposition of the court is not sought to enforce action by the Executive under con- stitutional legislation, but to restrain such actioa under legisla- tion alleged to be unconstitutional. But we axe unable to per- ceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion. It was admitted in the argument that the application now made to us is without a precedent; and this is of much weight against it. Had it been supposed at the bar that this court would, in any case, interpose, by injunction, to prevent the execution of an un- constitutional act of Congress, it can hardly be doubted that appli- cations with that object would have been heretofore addressed to it. Occasions have not been wanting. The constitutionality of the act for the annexation of Texas was vehemently denied. It made important and permanent changes in the relative importance of States and sections, and was by many supposed to be pregnant with disastrous results to large interests in particular States. But no one seems to have thought of an ap- plication for an injunction against the execution of the act by the President. And yet it is difficult to perceive upon what principle the appli- cation now before us can be allowed and similar applications in that and other cases have been denied. The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained. It will hardly be contended that Congress [the courts?] can interpose, in any case, to restrain the enactment of an unconsti- tutional law; and yet how can the right to judicial interposition to prevent such an enactment, when the purpose is evident and the execution of that purpose certain, be distinguished, in prin- ciple, from the right to such interposition against the execution of such a law by the President? The Congress is the legislative department of the government; the President is the executive department. Neither can be re- strained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. MISSISSIPPI V. JOHNSON. 657 Suppose the bill filed and the injunction prayed for allowed. If the President refuse ohedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a col- lision may occur between the executive and legislative departments of the government? May not the House of Eepresentatives im- peach the President for such refusal? And in that case could this court interfere, in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of. the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by iiis court to arrest proceedings in that court? These questions answer themselves. It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the per- formance of his official duties; and that noi such bill ought to be received by us. It has been suggested that the bill contains a prayer that, if the relief sought csmnot be had against Andrew Johnson, as Presi- dent, it may be granted against Andrew Johnson as a citizen of Tennessee.. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson, is relief against its execu- tion by the President. A bill praying an injunction against the execution of an act of Congress by the incumbent of the presi- dential office cannot be received, whether it describes him as Presi- dent or as a citizen of a State. The motion for leave to file the bill is, therefore. Denied. Note. — ^Whether any particular class of Indians are still to be regarded as a tribe, or have ceased to hold the tribal relation, is primarily a question for the political departments of the govern- ment, and if they have decided it, this court will follow their lead. United States v. Holliday, 3 Wallace, 407. It belongs exclusively to the government to recognize the polit- ical existence of new foreign states, and until it does so, courts must consider the old state of things as remaining. Gelston v. Hoyt, 3 Wheaton, 246. In a controversy between the United States and a foreign sov- ereign as to boundary, this court must follow the decision of that department of the government intrusted by the constitution with 42 658 CASES ON CONSTITUTIONAL LAW. the care of its foreign relations, especially if sanctioned ty the legislative power. Foster v. Neilson, 2 Peters, 353. A bill in eqviity filed by one of the United States to enjoin the Secretary of War and otha: ofiScers who represent the Executive authority of the United States from carrying into execution cer- tain acts of Congress, on the ground that such execution would annul and totally abolish the existing State government of the State and establish another and different one in its place — ^in other words, would overthrow and destroy the corporate existence of the State by depriving it of all means and instrumentalities whereby its existence might, and otherwise, would, be maintained — calls for judgment upon a political question, and will therefore not be entertained by this court State of Georgia v. Stanton, 6 Wal- lace, 50. The President, in a message to congress, and in the correspond- ence carried on with the government of Buenos Ayres, having denied the jurisdiction of that country over the Falkland Islands, the courts must take the fact so to be. Williams v. Suffolk Insur- ance Co., 13 Peters, 415. Who is the sovereign, de jure or de facto, of a territory is not a judicial buit a political question, the determination of which by the legislative and executive departments of any government con- clusively binds the judges, as well as aU other officers, citizens and subjects of that government. Jones v. United States, 137 U. S., 203. XVI. ENFORCEMENT OF EXECUTIVE POWER BY JUDICIAL PROCESS. In be debs. Petitioner. 158 V. S., 564. Decided 1895. [On July 2, 1894, the district attorney for the ITorthem District of Illinois, acting under the direction of the Attorney-General of the United Staites, filed a bill of complaint in the Circuit Court of the United States for the Northern District of Illinois against these petitioners and others. The bill averred that the twenty-two railroads named therein were engaged in the business of inter- state commerce and also that each of them was under contract to carry the United States mails; that four of the defendants were officers of the American Eailway Union; that these four offi- cers combined with others to compel an adjustment of a dispute between the Pullman Palace Car Company and its employes by boycotting the cars of the company; that to make the boycott effective, they had prevented certain of the railroads running out of Chicago from operating their trains, and were combining to extend such boycott against the Pullman cars by causing strikes among employes of all roads attempting to haul the same; that the defendants and others unknown proceeded by collecting to- gether in large numbers, by threats, intimidation, force and vio- lence, to prevent the said railways from employing other persons to fill the vacancies aforesaid; that the defendants and others unknown did with force and violence obstruct, derail, and wreck the engines and trains of the said railways, both passenger and freight, engaged in interstate commerce and in carrying the United States mails. Following these allegations was a prayer for an in- junction. The court thereupon ordered an injunction command- ing the defendants "and all persons combining and conspiring with them, and all other persons whomsoever absolutely to desist and refrain from" doing the unlawful acts specified in the bill. The injunction was served on those of the defendants who are here as 659 660 CASES ON CONSTITUTIONAL LAW. petitioners. On July 17 the district attorney filed an informa- tion for an attachment against the four defendants, and on August 1 a similar information against the other petitioners. A hearing was had before the Circuit Court, and on December 14, these peti- tioners were found guilty of contempt and sentenced to imprison- ment in the county jail for terms varying from three to six months. Havijjig been, committe(J to, jail> tljiey on .jTanuaiy 14, 189i5, applied to this court for a writ of error and also a writ of habeas corpus. The former was denied on the ground? that the order of the Circuit Court was not a final judgment or decree. The latter is now to be considered.] Mr. Justice Beeweb . . . delivered the opinion of the court. The case presented by the bill is this: The United States, finding that the interstate, transportation of persons and property, as weU as the carriage of' the mails, is forcibly obstructed, and that a combination a-nd conspiracy existe to subject the control of such transportation to the will of the conspirators, applied- to one of their courts, sitting as a court of equity, for an injunction to re- strain such obstruction and' prevent carrying into effect such con- spiracy. Two, questions of importance are suggested: First. Are the relations of the general government to interstate commerce and the transportation of the mails such as to authorize a direct inter- ference to prevent a forcible obstruction thereof? Second. If authority exists, as authority in government implies both power and duty, has a court of equity jurisdiction to issue an injunction in aid of the performance of such duty? First. What are the relations of the general government to interstate commerce and the transportation of the mails? They are those of direct supervision, control, and' management. While under the dual system which prevails with us the powers of gov- ernment are distributed between the State and the Nation, 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, andj in the exercise of ■'those enumerated powers, acts directly upon the citizen, and- not through the inter- mediate agency of the State. "The government of the Union, then, is, emphatically and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exer- cised directly on them, and for their benefit." "No trace is to be found in the Constitution of an intention to IN RE DEBS, PETITIONER. 661 create a dependence of the government of the Union on those 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 was it expected to rely for the accomplishment of its ends. To impose on it the neeeissity of resorting to means which it cannot controlj which another goTemment may furnish or withhold, would render its course precarious, the result of its measures uncertainj and cre- ate a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the Constitution." Chief Justice Marshall in McCuUoch v. Maryland, 4 Wheat., '316, 405, 424. "Both the States and the TJnited States existed before the Con- stitution. The people through that instrument, established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the confederate government, which iacted with powers, greatly restricted, only upon the States." Chief Justice Chase in Lane County v. Oregon, 7 Wall., 71, 76. "We hold it be an incontrovertible principle, that the govern- ment of the United States may, by means of physical force, exer- cised through its official agents, execute on every foot of American soil the powers aad functions that belong to it. This Necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. "This power to enforce its laws and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same places; The one does not exclude the other, except where both cannot be executed at the same time^ In that easci the words of the Constitution itself show which is to yield. 'This Constitution, and all laws which shall be made in pursuance thereof, . . . shall be the supreme law of the land.' " Mr. Justice Bradley in Ex parte Siebold, 100 U. S., 371, 395^ . . . Among the powers expressly given to the national government are the control of interstate commerce and the ereatioii and man- agement of a post office system for the nation. . . ; [Here follows a consideration of the statutes passed itt the exercise of these powers.] Obviously these powers given to the national government over interstate commerce and in respect to the transportation of thfe mails were not dormant and unused. Congress had talien hbld of these two inatters, and by various and specific acts had assunied and exercised the powers gifen to it, and was in full discharge 663 CASES ON CONSTITUTIONAL LAW. of its duty to regulate interstate commerce and carry the mails. The validity of such exercise and the exclusiveness of its con- trol had been agaiu and again presented to this court for consider- ation. It is curious to note the fact that in a large proportion of the cases in respect to interstate commerce brought to this court the question presented was of the validity of state legislation in its bearings upon interstate commerce, and the uniform course of de- cision has been to declare that it is not within the competency of a State to legislate in such a manner as to obstruct interstate commerce. If a State with its recognized powers of sovereignty is impotent to obstruct interstate commerce, can it be that any mere voluntary association of individuals within the limits of that State has a power which the State itself does not possess? As, under the Constitution, power over interstate commerce and the transportation of the mails is vested in the national govern- ment, and Congress by virtue of such grant has a^umed actual and direct control, it follows that the national government may prevent any unlawful and forcible interference therewith. But how shall this be accomplished? Doubtless, it is within the com- petency of Congress to prescribe by legislation that any interference with these matters shall be offenses against the United States, and prosecuted and punished by indictment in the proper courts. But is that the only remedy? Have the vast interests of the nation in interstate commerce, and in the transportation of the mails, no other protection than lies in the possible punishment of those who interfere with it? To ask the question is to answer it. By article 3, section 2, clause 3, of the Federal Constitution it is provided: "The trial of all crimes except in cases of impeachment shall be by jury; and such trial shall be held in the State where the said crime shall have been committed." If all the inhabitants of a State, or even a great body of them, should combine to obstruct interstate commerce or the transporation of the mails, prosecutions for such offenses had in such a community would be doomed in advance to failure. And if the certainty of such failure was known, and the national government had no other way to enforce the free- dom of interstate commerce and the transportation of the mails than by prosecution and punishment for interference therewith, the whole interests of the nation in these respects would be at the absolute mercy of a portion of the inhabitants of that single State. But there is no such impotency in the national government. The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the IN RE DEBS, PETITIONER. 6C3 security of all rights entrusted by the Constitution to its care. The strong arm of the national government may be put forth to brush away all obstructions to the freedom of interstate commerce or the transportation of the mails. If the emergency arises, the army of the Nation, and all its militia, are at the service of the Nation to compel obedience to its laws. But passing to the second question, is there no other alternative than the use of force on the part of the executive authorities when- ever obstructions arise to the freedom of interstate commerce or the transportation of the mails? Is the army the only instrument by which rights of the public can be enforced and the pfeace of the nation preserved? Grant that any public nuisance may be forcibly abated either at the instance of the authorities, or by any individ- ual sufEering private damage therefrom, the existence of this right of forcible abatement is not inconsistent with nor does it destroy the right of appeal in an orderly way to the courts for a judicial determination, and an exercise of their powers by writ of injunc- tion and otherwise to accomplish the same result. . • . So, in the case before us, the right to use force does not exclude the right of appeal to the courts for a judicial determination and for the exercise of all their powera of prevention. Indeed, it is more to the praise than to the blame of the government, that, instead of determining for itself questions of right and wrong on the part of these petitioners and their associates and enforcing that determination by the club of the policeman and the bayonet of the soldier, it submitted all those questions to the peaceful determina- tion of judicial tribunals, and invoked their consideration and judgment as to the measure of its rights and powers and the cor- relative obligations of those against whom it made complaint. And it is equally to the credit of the latter that the judgment of those tribunals was by the great body of them respected, and the troubles which threatened so much disaster terminated. Neither can it be doubted that the government has such an interest in the subject-matter as enables it to appear as party plaintiff in this suit. It is said that equity only interferes for the protection of property, and that the government has no property interest. A sufficient reply is that the United States have a prop- erty in the mails, the protection of which was one of the purposes of this bill. . . . "We do not care to place our decision upon this ground alone. Every government, entrusted, by the very terms of its being, with powers and duties to be exercised and discharged for the general welfare, has a right to apply to its own courts for any proper assist- 664 CASES ON CONSTITUTIONAL LAW. aaee in the exercise of the one and the discharge of the other, and it is no STiffieient answer to its appeal to one of those courts that it has no pecuniary interest in the matter. The obligation which it is under to promote the interest of all, and to prfivent the wrong- doing of one resulting in injury to the general welfare, is often of itself sufficient to give it standing in the court. [Here fol- lows a discussion of United States t. San Jacinto Tin Co., 125 U. S., 273, 285, and United States v. Bell Telephone Company, 128 U. S., 315, 367.] It is obvious from these decisions that while it is not the prov- ince of the government to interfere in any mere matter of private controversy between individuals, or to use its great powers to enforce the rights of one against another, yet, whenever the wrongs complained of are such as affect the public at large, and are in respect of matters which by the Constitution are entrusted to the care of the Nation, and concerning which the Nation owes the duty to all the citizens of securing to them their common rights, "then the mere fact that the government has no pecuniary interest in the controversy is not sufficient to exclude it from the courts, or prevent it from taking measures therein to fully discharge those constitutional duties. The national government, given by the Constitution power to regulate interstate commerce, has by express statute assumed juris- diction over such commerce when carried upon railroads. It is charged, therefore, with the duty of keeping those highways of interstate commerce free from obstruction, for it has always been recognized as one of the powers and duties of a government to remove obstructions from the highway under its control. As said in Gihnan v. Philadelphia, 3 Wall., 713, 724: "The power to regulate commerce comprehends the control for that purpose, and to the extent necessary, of all the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all the requisite legislation by Con- gress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise; to remove such obstructions when they exist; and to provide, by such sanctions as they may deem proper, against the occurrence of the evil and for the punish- ment of the offenders. For these purposes. Congress possesses all the powers which existed in the States before the adoption of the national Constitution, and which have always existed in the Parliament of England." . . . IN RE DEBS, PETITIOiNER. 665 It is said tkat the jurisdiction heretofore esercified by the na- tional gove'mment over highirays has been in respect to water- ways — the natural highways of the country — and not over artifi- cial highways such as railroafds; but the occasion for the exercise by Congress of its jurisdietioii over the latter is of recent date. Perhaps the first act in the course of such legislation is that here- tofore referred to, of June 11, 1866, but the basis upon whi«h rests its jurisdiction over artifeial highways is the same as that which supports it over the natural highways. Both spring from the power to regulate commerce. The national government has no separate dominion over a river within the limits of a State; its jurisdiction there is like that over land in the same State. Its control over the river is simply by virtue of the fact that it is one of the highways of interstate and international commerce. The great case of Gibbons v. Ogden, 9 Wheat., 1, 197, in which the control of Congress over inland waters was asserted, rested that control on the grant of the power to regulate commerce. The argument of the Chief Justice was that commerce includes naviga- tion, "and a power to regulate navigation is as expressly granted as if that term had been added to the word 'commerce.' " In order to fully regulate commerce with foreign nations it is essen- tial that the power of Congress does not stop at the borders of the nation, and equally so as to commerce among the States: "The power of Congress, then, 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.' It may, of consequence, pass the jurisdictional line of New York, and act upon the very waters to which the prohibition now under consideration applies." See also Gilman v. Philadelphia, 3 "Wall., 713, 725, in which it was said: "Wherever 'commerce among the States' goes, the power of the nation, as represented in this court, goes with it to protect and enforce its rights." Up to a recent date commerce, both interstate and international, was mainly by water, and it is not strange that both the legislation of Congress and the cases in the courts have been principally con- cerned therewith. The fact that in recent years interstate com- merce has come mainly to be carried on by railroads and over artificial highways has in no manner narrowed the scope of the constitutional provision, or abridged the power of Congress over Buch commerce. On the contrary, the same fullness of control 666 CASES ON CONSTITUTIONAL LAW. exists in the one case as in the other, and the same power to remove ohstrnctions from the one as from the other. Constitutional provisions do not change, but their operation extends to new matters as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same today as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown, the railroad train and the steamship. Just so is it with the grant to the national gov- ernment of power over interstate commerce. The Constitution has not changed. The power is the same. But it operates today upon modes of interstate commerce unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop. . . . We have given to this case the most careful and anxious atten- tion, for we realize that it touches closely questions of supreme importance to the people of this country. Summing up our con- clusions, we hold that the government of the United States is one having jurisdiction over every foot of soil within its territory, and acting directly upon each citizen; that while it is a govern- ment of enumerated powers, it has within the limits of those powers all the attributes of sovereignty; that to it is committed power over interstate commerce and the transmission of the mail; that the powers thus conferred upon the national government are not dormant, but have been assumed and put into practical exer- cise by the legislation of Congress; that in the exercise of those powers it is competent for the nation to remove all obstructions upon highways^ natural or artificial, to the passage of interstate commerce or the carrying of the mail; that while it may be com- petent for the government (through the executive branch and in the use of the entire executive power of the nation) to forcibly remove all such obstructions, it is equally within its competency to appeal to the civil courts for an inquiry and determination as to the existence and character of any alleged obstructions, and if such are found to exist, or threaten to occur, to invoke the powers of these courts to remove or restrain such obstructions; that the jurisdiction of courts to interfere in such matters by injunction is one recognized from ancient times and by indubitable author- ity; that such jurisdiction is not ousted by the fact that the ob- structions are accompanied by or consist of acts in themselves vio- lations of the criminal law; that the proceeding by injunction is of a civil character, and may be enforced by proceedings in con- IN RE DEBS, PETITIONER. 667 tempt; that such proceedings are not in execution of the crim- inal laws of the land; that the penalty for a violation of injunc- tion is no suhstitute for and no defense to a prosecution for any criminal offenses committed in the course of such violation; that the complaint filed in this case clearly showed an existing ohstruc- tion of artificial highways for the passage of interstate commerce and the transmission of the mail — an obstruction not only tem- porarily existing, but threatening to continue; that under such complaint the Circuit Court had power to issue its process of. injunction; that it having been issued and served on these de- fendants, the Circuit Court had authority to inquire whether its orders had been disobeyed, and when it found that they had been, then to proceed under section 735, Revised Statutes, which grants power "to punish by fine or imprisonment, . . . disobedi- ence, ... by any party . . , or other person, to any lawful writ, process, order, rule, decree or command," and enter the order of punishment complained of; and, finally, that, the Circuit Court, having full jurisdiction in the premises, its finding of the fact of disobedience is not open to review on habeas corpus in this or any other court. . . . The petition for a writ of habeas corpus is Denied. Note. — See articles by F. J. Stimson on The Modem Use of In- junctions, Political Science Quarterly, X. 189 (1895), and by Wil- liam H. Dunbar on Government by. Injunction, Law Quarterly Re- view, XIII., 347 (1897). The latter has been reprinted by the American Economic Association in Economic Studies, Vol. III., No. I. SUPPLEMENT 669 TAXATION. SOUTH CAROLINA v. UNITED STATES. 199 U. S. 437. Decided December 4, 1905. By several statutes, the State of South Carolina established dis- pensaries for the wholesale and retail sale of liquor, and prohibited sale by other than the dispensers. The United States demanded the license taxes prescribed by the internal revenue act for dealers in intoxicating liquors, and the dispensers filed the statutory ap- plications for such licenses. The State, sometimes in cash and sometimes by warrant on its treasury, paid the taxes. No protest was made in reference to these payments prior to April 14, 1901. On that day a formal protest by the state dispensary commissioner was filed with the United States collector of internal revenue at Columbia, South Carolina. No appeal or application for the re- payment of the sums paid by the various dispensers was made by them or by the State of South Carolina to the Commissioner of In- ternal Revenue, as authorized by § § 3226, 3227, and 3228, Rev. Stat., U. S. Comp. Stat. 1901, pp. 2088, 2089. The dispensers had no interest in the sales, and received no profit therefrom. The entire profits were appropriated by the State, one half being divided equally between the municipality and the county in which the dispensaries were located, and the other half paid into the state treasury. In the year 1901 the profits aris- ing from these sales amounted to $545,248.12. While the laws of South Carolina prohibited the sale of liquor by individuals other than the dispensers, of 373 special license stamps issued in that State by the United States internal revenue collector, only 112 were to dispensers, while 260 were to private individuals. Three separate actions were commenced in the court of claims by the State of South Carolina to recover the amounts paid for these license taxes. These actions were consolidated. Upon a hearing, findings of fact 671 672 CASES ON CONSTITUTIONAL LAW. were made and a judgment entered for the United States. 39 Ct. CI. 357. Whereupon the State appealed to this court. Mr. Justice Beeweb, after making the foregoing statement, /delivered the opinion of the court: The important question in. this case is whether persons who are selling liquor are relieved from liability for the internal revenue tax by the fact that they have no interest in the profits of the busi- ness, and are simply the agents of a State which, in the exercise of its sovereign power, has taken charge of the business of selling intoxicating liquors. It is true a further question is made whether the act of Congress is broad enough to include such persons. But upon this we have little doubt. Section 3333, Eev. Stat., pro- vid-es: "No person shall be engaged in or carry on any trade or business hereinafter mentioned until he has paid' a special tax- therefor in tJie manner hereinafter provi^di." Si3ction 3244 contains these words of description: "Every person who sells or offers for sale foreign or domestic distilled spirits or wines, in less quantities than five wine gallons at the same time, shall be regarded as a retail dealer in liquors." "Person" is also defined : "S^c; 3140. . . . Where nof? otherwise disMnctly expressed or manifestly incompatible witii the intent thereof, tile word: 'per* son,' as used in this title, shall be construed* to>mean and include a partnership, association, company, or corporation^ as well, as a natural jverson." Now, the dispensers were persons who sold liquors. They ap- plied for and received the licenses; True tiiey were acting simply as agents of the State; but if the fact that the State was. the prin- cipal creates no exemption from Federal taxation, then tiie statute reaches them because they wore the actual sellers. We pass, therefore^ to the vital question in the case,, and it ia one of far-peaching significance. We have in this; Republic a dual system of government, National and State, — each: operating' with- in the same territory and upon the same persons, and yet woiiing without collision, because their functions are diffi9rent. There are certain matters over which the National Government hasabsoltite control, and no action of the State can interfere therewitii, and there are others in which the State is supreme, and in respect to SOUTH CAROLINA v. UNITED STATES. 673 ttem the National GoTernment is powerless. To preserve the even balance between these two governments, and hold each in its sepa- rate sphere, is the peculiar duty of all courts ; pre-eminently of this, — a duty oftentimes of great delicacy and difficulty. Two propositions in our constitutional jurisprudence are no longer debatable. One is that the National Government is one of enumerated powers; and the other, that a power enumerated and delegated by the Constitution to Congress is comprehensive and complete, without other limitations than those found in the Con- stitution itself. The Constitution is a written instrument. As such its meaning does not alter. That which it meant when adopted, it means now. Being a grant of powers to a government, its language is general ; and, as changes come in social and political life, it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred. In other words, while the powers granted do not change, they apply from generation to generation to all things to which they are in their nature applicable. This in no manner abridges the fact of its changeless nature and meaning. Those things which are within its grants of power, as those grants were understood when made, are still within them ; and those things not within them remain still excluded. As said by Mr. Chief Justice Taney in Scott v. Saadf ord, 19 How. 393, 426 : "It is not only the same in words, but the same in meaning, and delegates the same powers to the Government, and reserves and secures the same rights and privileges to th0 citizen; and as long as it continues to exist in its present form, it speaks not only ia the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or pas- sion of the day." It must also be remembered that the framers of the Constitution were not mere visionaries, toj'ing with speculations or theories, but practical men, dealing with the facts of political life as they un- derstood them; putting into form the government they were creat- ing, and prescribing, in language clear and intelligible, the powers that government was to take. Mr. Chief Justice Marshall in Gib- bons V. Ogden, 9 Wheat. 1, 188, v/ell declared: 43 674 CASES ON CONSTITUTIONAL LAW. "As men whose intentions require no' concealment generally em- ploy the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Consti- tution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said." One other fact must he borne in mind, and that is that in in- terpreting the Constitution we must have recourse to the common law. As said by Mr. Justice Matthews in Smith v. Alabama, 124 U. S. 465, 478: "The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." And by Mr. Justice Gray in United States v. Wong Kim Ark, 169 U. S. 649, 654: "In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were fa- miliarly known to the framers of the Constitution. Minor v. Hap- persett, 21 WaU. 163; Ex parte Wilson, 114 U. S. 417, 422; Boyd V. United States, 116 U. S. 616, 624, 625 ; Smith v. Alabama, 124 U. S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent, Com. 336; Bradley, J., in Moore v. United States, 91 U. S. 270, 274." To determine the extent of the grants of power, we must, there- fore, place ourselves in the position of the men who framed and adopted the Constitution, and inquire what they must have under- stood to be the meaning and scope of those grants. By the first clause of section 8 of Article 1 of the Canstitution, Congress is given the "power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common de- fense and general welfare of the United States ; but all duties, im- posts, and excises shall be uniform throughout the United States."' By this clause the grant is limited in two ways: The revenue must be collected for public purposes, and all duties, imposts, and excises must be uniform throughout the United States. The fourth, fifth, and sixth clauses of section 9 of Article 1 are: "4. No capitation or other direct tax shall be laid, unless in pro- SOUTH CAROLINA v. UNITED STATES. 675 portion to the census or enumeration hereinbefore directed to be taken. "6. No tax or duty shall be laid on articles exported from any State. "6. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another." Article V of the Amendments provides that no one shall be de- prived of 'life, liberty, or property without due process of law." These are all the constitutional provisions that bear directly upon the subject. It will be seen that the only qualifications of the abso- lute, untrammeled power to lay and collect excises are that they shall be for public purposes, and that they shall be uniform throughout the United States. AU other limitations named in the Constitution relate to taxes, duties, and imposts. If, therefore, we confine our inquiry to the express provisions of the Constitution, there is disclosed no limitation on the power of the General Gov- ernment to collect license taxes. But it is undoubtedly true that that which is implied is as much a part of the Constitution as that which is expressed. . . . Among those matters which are implied, though not expressed, is that the Nation may not, in the exercise of its powers, prevent a State from discharging the ordinary functions of government, just as it follows from the second clause of Article VI of the Consti- tution, that no State can interfere with the free and unembarrassed exercise by the national government of all the powers conferred upon it. "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." In other words, the two governments — National and State — are each to exercise their powers so as not to interfere with the free and full exercise by the other of its powers. This proposition, so far as the Nation is concerned, was affirmed at an early day in the great case of M'Culloch v. Maryland, 4 Wheat. 316, in which it was held that the State had no power to pass a law imposing a tax 676 CASES ON CONSTITUTIONAL LAW. upon the operations of a national bank. The case is familiar and needs not to be quoted from. No answer has ever been made to the argument of Mr. Chief Justice Marshall, and the propositions there laid down have become fundamental in our constitutional jurisprudence. Osborn v. Bank of United States, 9 Wheat. 738; Weston v. Charleston, 3 Pet. 449; Bank of Commerce v. New York, 2 Black 620 ; Bank Tax Case, 2 Wall. 200 ; The Banks v. The Mayor, 7 Wall. 16. The limitations on the powers of the States to tax national banks are founded upon the doctrines laid down in that case. So also the immunity of national property from state taxation. It is true that in most of the enabling acts for the admission of new States there is express provision that the property of the Nation shall be free from state taxation; but, as shown by Mr. Justice Gray, delivering the opinion of the court in Van Brocklin v. Tennessee, 117 U. S. 151, this provision is merely declaratory and unnecessary to establish the exemption of national property from state taxation. See also Dobbins v. Erie County, 16 Pet. 435, as to taxation by a State of an officer of the United States for his office or its emoluments. The converse of this proposition has also been declared by the de- cisions of this court. In Texas v. White, 7 Wall. 700, 735, Mr. Chief Justice Chase, speaking for the court, declared : '^ot only, therefore, can there be no loss of separate and in- dependent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preserva- tion of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." In The Collector v. Day, 11 Wall. 113, it was held that it was not competent for Congress to impose a tax upon the salary of a judicial officer of a State. In the ojanion of the court, de- livered by Mr. Justice Nelson, it was said (p. 137) : "It is admitted that there is no express provision in the Constitu- tion that prohibits the General Government from taxing the means and instrumentalities of the States, nor is there any prohibiting the States from taxing the means and instrumentalities of that Govern- ment. In both cases the exemption rests upon necessary implica- SOUTH CAROLINA v. UNITED STATES. 677 tion, and is upheld by the great law of self-preservation; as any GoTernment, whose means employed in conducting its operations, if subject to the control of another and distinct Government, can exist only at the mercy of that Government. Of what avail are these means if another power may tax them at discretion ?" See also United States v. Baltimore & 0. E. Co., 17 Wall. 322 ; Pollock V. Farmers' Loan & Trust Co. 157 U. S. 429, 584. Upon this proposition counsel for appellant rely. There being no constitutional limit as to the amount of a license tax, and the power to tax being the power to destroy, if Congress can enforce such a tax against a State, it may destroy this effort of the State, in the exercise of its police power, to control the sale of liquor. It cannot be doubted that the regulation of the sale of liquor comes within the scope of the police power, and equally true that the po- lice power is, in its fullest and broadest sense, reserved to the States ; that the mode of exercising that power is left to their dis- cretion, and is not subject to National supervision. But if Con- gress may tax the agents of the State charged with the duty of selling intoxicating liquors, it in effect assumes a certain control over this police power, and thus may embarrass and even thwart the attempt of the State to carry on this mode of regulation. We are not insensible to the force of this argument, and appre- ciate the difficulties which it presents; but let us see to what it leads. Each State is subject only to the limitations prescribed by the Constitution, and within its own territory is otherwise su- preme. Its internal affairs are matters of its own discretion. The Constitution provides that "the United States shall guarantee to every State in this Union a republican form of government." Art. 4, sec. 4. That expresses the full limit of National control over the internal affairs of a State. The right of South Carolina to control the sale of liquor by the dispensary system has been sustained. Vance v. W. A. Vander- cook Co., No. 1, 170 U. S. 438. The profits from the business in the year 1901, as appears from the findings of fact were over half a million of dollars. Mingling the thought of profit with the neces- sity of regulation may induce the State to take possession, in like manner, of tobacco, oleomargarine, and all other objects of internal revenue tax. If one State finds it thus profitable, other States may follow, and the whole body of internal revenue tax be thus stricken down. 678 CASES ON CONSTITUTIONAL LAW. More than this. There is a large and growing movement in the country in favor of the acquisition and management by the public of what are termed "public utilities," including not merely there- in the supply of gas and water, but also the entire railroad sys- tem. Would the State, by taking into possession these public utili- ties, lose its republican form of government? We may go even a step further. There are some insisting that the State shall become the owner of all property and the manager of all business. Of course, this is an extreme view, but its advocates are earnestly contending that thereby the best interests of all citi- zens will be subserved. If this change should be made in any State, how much would that State contribute to the revenue of the na- tion ? If this extreme action is not to be counted among the proba- bilities, consider the result of one much less so. Suppose a State assumes, under its police power, the control of all those matters subject to the internal revenue tax, and also engages in the busi- ness of importing all foreign goods. The same argument which would exempt the sale by a State of liquor, tobacco, etc., from a license tax, would exempt the importation of merchandise by a State from import duty. While the State might not prohibit im- portations, as it can the sale of liquor, by private individuals, yet, paying no import duty, it could undersell all individuals, and so monopolize the importation and sale of foreign goods. Obviously, if the power of the State is carried to the extent sug- gested, and at the same time relieved from all Federal taxation, the National Government would be largely crippled in its revenues. Indeed, if all the States should concur in exercising their powers to the full extent, it would be almost impossible for the Nation to collect any revenues. In other words, in this indirect way it would be within the competency of the States to practically destroy the efficiency of the National Government. If it be said that the States can be trusted not to resort to any such extreme measures, because of the resulting interference with the efficiency of the National Gov- ernment, we may turn to the opinion of Mr. Chief Justice Marshall in M'Culloch v. Maryland, 4 Wheat. 431, for a complete answer : "But is this a case of confidence ? Would the people of any one State trust those of another with a power to control the most in- significant operations of their state government? We Icnow they would not. Why, then, should we suppose that the people of any one State should be willing to trust those of another with the power SOUTH CAROLINA v. UNITED STATES. 679 "to control the operations of a government to which they have con- fided their most important and most valuable interests? In the legislature of the Union alone are all represented. The legislature of the Union alone, therefore, can be trusted by the people with the power of controlling measures which concern all, in the con- fidence that it will not be abused." In other words, we are to find in the Constitution itself the full protection of the Nation, and not to rest its sufficiency on either the generosity or the neglect of any State. There is something of a conflict between the full power of the Nation in respect to taxation and the exemption of the State from Federal taxation in respect to its property and a discharge of all its functions. Where and how shall the line between them be drawn? We have seen that the full power of coUecttag license taxes is in terms granted to the National Government, with only the limitations of uniformitv and the public benefit. The exemption of the State's property and its functions from Federal taxation is implied from the dual character of our Federal system and the necessity of preserving the State in all its efficiency. In order to determine to what extent that implication will go we must turn to the condition of things at the time the Constitution was framed. What, in the light of that condition, did the framers of the con- vention intend should be exempt ? Certain is it that modern no- tions as to the extent to which the functions of a State may be car- ried had then no hold. Whatever Utopian theories may have been presented by any vn'iters were regarded as mere creations of fancy, and had no practical recognition. It is true that monopolies in re- spect to certain commodities were known to have been granted by absolute monarchs, but they were not regarded as consistent with Anglo-Saxon ideas of government. The opposition to the Constitu- tion came not from any apprehension of danger from the extent of power reserved to the States, but, on the other hand, entirely through fear 'of what might result from the exercise of the powers granted to the central government. While many believed that the liberty of the people depended on the, preservation of the rights of the States, they had no thought that those States would extend their functions beyond their then recognized scope, or so as to im- peril the life of the Nation. As well said by Chief Justice Nott, delivering the opinion of the court of claims in this case (39 Ct. CI. 284) : 680 CASES ON CONSTITUTIONAL LAW. "Moreover, at the time of the adoption of the Constitution, there probably was not one person in the country who seriously contem- plated the possibility of government, whether State or ISTational, ever descending from its primitive plane of a body politic to take up the work of the individual or body corporate. The public sus- picion associated government with patents of nobility, with an es- tablished church, with standing armies, and distrusted all govern- ments. Even in the high intelligence of the convention, there were men who trembled at the power given to the President, who trem- bled at the power which the Senate might usurp, who feared that the life tenure of the judiciary might imperil the liberties of the people. Certain it is that if the possibility of a government usurping the ordinary business of individuals, driving them out of the market, and maintaining place and power by means of what would have been called, in the heated invective of the time, 'a legion of mercenaries,' had been in the public mind, the Con- stitution would not have been adopted, or an inhibition of such power would have been placed among Madison's amendments." Looking, therefore, at the Constitution in the light of the con- ditions surrounding it at the time of its adoption, it is obvious that the framers, in granting full power over license taxes to the Na- tional Government, meant that that power should be complete ; and never thought that the States, by extending their functions, could practically destroy it. If we look upon the Constitution in the light of the common law, we are led to the same conclusion. All the avenues of trade were open to the individual. The Government did not attempt to ex- clude him from any. Whatever restraints were put upon him were mere police regulations to control his conduct in the business, and not to exclude him therefrom. The Government was no competitor, nor did it assume to carry on any business which ordinarily is carried on by individuals. Indeed, every attempt at monopoly was odious in the eyes of the common law, and it mattered not how that monopoly arose, whether from grant of the sovereign or otherwise. The framers of the Constitution were not anticipating that a State would attempt to monopolize any business heretofore carried on by individuals. Further, it may be noticed that the tax Is not imposed on any property belonging to the State, but is a charge on a business be- fore any profits are realized therefrom. In this it is not unlike SOUTH CAROLINA v. UNITED STATES. 681 the taxes siistained in United States v. Eerkins, 163 U. S. 635, and Snyder v. Bettman, 190 TJ. S. 249. In the former ease a succes- sion tax of the State of New York was sustained, although the property charged therewith was bequeathed by will to the United States, the court holding that the latter acquired no property un- til after the state charges for transmission had been paid, saying (p. 629) : "This, therefore, is not a tax upon the property itself, but is merely the price exacted by the State for the privilege accorded in permitting property so situated to be transferred by will or by de- scent or distribution." In Snyder v. Bettman, the succession tax required by the laws of Congress was sustained, although the bequest was to the city of Springfield,- Ohio. This is almost a converse to the Perkins case. It was held that while the power to regulate inheritances and testa- mentary dispositions was one belonging to the State, and there- fore subject to such conditions as the State might see fit to im- pose (as held in the Perkins case), yet the power to impose a suc- cession tax was vested in Congress, that it could be exercised upon a bequest made to a municipality or a State, and was not to be con- sidered as a tax upon the property bequeathed, the court saying (p. 254) : "Having determined, then, that Congress has the power to tax successions, that the States have the same power, and that such povrer extends to bequests to the United States, it would seem to follow logically that Congress has the same power to tax the trans- mission of property by legacy to States, or their municipalities, and that the exercise of that power in neither case conflicts with the proposition that neither the Federal nor the state government can tax the property or agencies of the other, since, as repeatedly held, the taxes imposed are not upon property, but upon the right to succeed to property." So here, the charge is not upon the property of the State, but upon the means by which that property is acquired, and before it is acquired. It is also worthy of remark that the cases in which the invalidity of a Federal tax has been affirmed were those in which the tax was attempted to be levied upon property belonging to the State, or one of its municipalities, or was a charge upon the means and 682 CASES ON CONSTITUTIONAL LAW. instrumentalities employed by the State, in the discharge of its ordinary functions as a government. In Veazie Bank v. Fenno, 8 Wall. 533, in which a national tax of ten per cent on the amount of notes of any person, state bank, or banking association, used for circulation, was sustained, the court thus stated the limits of the power of National taxation over state agencies (p. 547) : "It may be admitted that the reserved rights of the States, such as the right to pass laws, to give effect to laws through executive action, to administer justice through the courts, and to employ all necessary agencies for legitimate purposes of state government, are not proper subjects of the taxing power of Congress." In The Collector v. Day, 11 Wall. 113, cited supra, in the argu- ment in favor of the exemption of the salary of a state judge from National taxation is this language (p. 135) : "It would seem to follow, as a reasonable, if not a necessary, consequence, that the means and instrumentalities employed for carrying on the operations of their governments, for preserving their existence, and fulfilling the high and responsible duties as- signed to them in the Constitution, should be left free and un- impaired, — should not be liable to be crippled, much less defeated, by the taxing power of another government, which power acknowl- edges no limits but the will of the legislative body imposing the tax. And, more especially, those means and instrumentalities which are the creation of their sovereign and reserved rights, one of which is the establishment of the judicial department, and the appointment of officers to administer their laws. Without this power and the exercise of it, we risk nothing in saying that no one of the States, under the form of government guaranteed by the Constitution, could long preserve its existence." In United States v. Eailroad Co., 17 Wall. 332, an attempt was made to collect a tax on money due from a railroad company to the city of Baltimore. It was held that the city was a portion of the State, in the exercise of a limited portion of the powers of the State, and the court said (p. 337) : "The right of the States to administer their own afEairs through their legislative, executive, and judicial departments, in their own manner, through their own agencies, is conceded by the uni- form decisions of this court and by the practice of the Federal Government from its organization. This carries with it an SOUTH CAROLINA v. UNITED STATES. 683 exemption of those agencies and instruments from the taxing power of the Federal Government." And again (p. 332) : "We admit the proposition of the counsel that the revenue must be municipal in its nature to entitle it to the exemption claimed. Thus, if an individual should make the city of Baltimore his agent and trustee to receive funds, and to distribute them in aid of science, literature, or the fine arts, or even for the relief of the destitute and infirm, it is quite possible that such revenue would be subject to taxation. The corporation would therein de- part from its municipal character, and assume the position of a private trustee. It would occupy a place which an individual could occupy with equal propriety. It would not, in that action, be an auxiliary or servant of the State, but of the individual creating the trust. There is nothing of a governmental character in such a position." In Ambrosini v. United States, 187 TJ. S. 1, in which the Federal war revenue tax act, providing for stamp taxes on bonds, was held inapplicable to bonds required from licenses under the dram shop act of Illinois, the court declared (p. 8) : 'The question is whether the bonds were taken in the exercise of a function strictly belonging to the State and city in their ordinary governmental capacity, and we are of the opinion that they were, and that they were exempted as no more taxable than the licenses." These decisions, while not controlling the question before us, indicate that the thought has been that the exemption of state agencies and instrumentalities from National taxation is limited to those which are of a strictly governmental character, and does not extend to those which are used by the State in the carrying on of an ordinary private business. In this connection may be noticed the well-established distinc- tion between the duties of a public character cast upon municipal corporations, and those which relate to what may be considered their private business, and the different responsibility resulting in case of negligence in respect to the discharge of those duties. The Supreme Court of Massachusetts, speaking by Mr. Justice Gray (afterwards an Associate Justice of this court), in Oliver V. Worcester, 102 Mass. 489, 499, 500, observed: "The distinction is well established between the responsibili- eS-1 CASES ON CONSTITUTIONAL LAW. ties of towns and cities for acts done in their public capacity, in the discharge of duties imposed upon them by the legislature for the public benefit, and for acts done' in what may be called their private character, in the management of property or rights voluntarily held by them for their own immediate profit or advan- tage as a corporation, although inuring, of course, ultimately to the benefit of the public. "To render municipal corporations liable to private actions for omission or neglect to perform a corporate duty imposed by general law on all towns and cities alike, and from the perform- ance of which they derive no compensation or benefit in their corporate capacity, an express statute is doubtless necessary. . . . . But this rule does not exempt towns and cities from the liability to which other corporations are subject, for negligence in managing or dealing with property or rights held by them for their own advantage or emolument." In Lloyd v. New York, 5 N. Y. 369, 374, the court said: "The corporation of the city of New York possesses two kinds of powers, one governmental and public, and, to the extent they are held and exercised, is clothed with sovereignty; the other pri- vate, and, to the extent they are held and exercised, is a legal in- dividual. The former are given and used for public purposes, the latter for private purposes. While in the exercise of the former, the corporation is a municipal government; and while in the exercise of the latter, is a corporate, legal individual." See also Maxmilian v. New York, 62 N. Y. 160, 164; Brown V. Vinalhaven, 65 Me. 402; Mead v. New Haven, 40 Conn. 72; Petersburg v. Applegarth, 28 Gratt. 321, 343; Eastman v. Mere- dith, 36 N. H. 285 ; Western Saving Fund Society v. Philadelphia, 31 Pa. St. 175. In this case it was held that a city supplying gas to the inhabitants acts as a private corporation, and is subject to the same liabilities and disabilities. In the opinion the court declared (p. 183) : "Such contracts are not made by the municipal corporation by virtue of its powers of local sovereignty, but ia its capacity of a private corporation. The supply of gaslight is no more a duty of sovereignty than the supply of water. Both these objects may be accomplished through the agency of individuals or private cor- porations, and in very many instances they are accomplished by those means. If this power is granted to a borough or a city, it SOUTH CAROLINA v. UNITED STATES. 6S5 is a special private franchise, made as well for the private emolu- ment and advantage of the city as for the public good. The whole investment is the private property of the city, as much so as the lands and houses belonging to it. Blending the two powers in one grant does not destroy the clear and well-settled distinc- tion, and the process of separation is not rendered impossible by the confusion. In separating them, regard must be had to the object of the legislature in conferring them. If granted for public purposes exclusively, they belong to the corporate body in its public, political, or municipal character. But if the grant was for purposes of private advantage and emolument, though the public may derive a common benefit therefrom, the corporation quoad hoc is to be regarded as a private company. It stands on the same footing as would an:y individual or body of persons upon whom the like special franchises had been conferred." See further a subsequent case between the same parties, in the .same volume (pp. 185, 189) ; Bailey v. The Mayor, 3 Hill, 531; 1 Dillon, Mun. Corp. 4th ed. sec. 66. Now, if it be well established, as these authorities say, that there is a clear distinction as respects responsibility for negligence be- tween the powers granted to a corporation for governmental pur- poses and those in aid of private business, a like distinction may be recognized when we are asked to limit the full power of im- posing excises granted to the National Oovernment by an implied inability to impede or embarrass a State in the discharge of its functions. It is reasonable to hold that, while the former may do nothing by taxation in any form to prevent the full discharge by the latter of its governmental functions, yet, whenever a State engages in a business which is of a private nature, that business is not withdrawn from the taxing power of the Nation. For these reasons we think that the license taxes charged by the Federal Government upon persons selling liquor are not invali- dated by the fact that they are the agents of the State, which has itself engaged in that business. The judgment of the Court of Claims is Affirmed. [Me. Justice White, with whom concurred Mh. Justice Peck- ham and Me. Justice McKenna, delivered a dissenting opinion.] COMMERCE. PLUMLEY V. MASSACHUSETTS. 155 U. S. 461. Decided Becember 10. 1894. The case is stated in the opinion Me. Justice Harlak delivered the opinion of the court. Plumley, the plaintiff in error, was convicted in the Municipal Court of Boston upon the charge of having sold in that city on the 6th day of October, 1891, in violation of the law of Massa- chusetts, a certain article, product and compound known as oleo- margarine, made partly of fats, oils, and oleaginous substances and compounds thereof, not produced from unadulterated milk or cream but manufactured in imitation of yellow butter pro- duced from pure unadulterated milk and cream. The prosecution was based upon a statute of that Common- wealth approved March 10, 1891, Mass. Stats. 1891, c. 58, p. 695, entitled "An act to prevent deception in the manufacture and sale of imitation butter." By that statute it is provided as follows : "Section 1. "No person by himself or by his agents or servants, shall render or manufacture, sell, offer for sale, expose for sale or have in his possession with intent to sell, any article, product or compound made wholly or partly out of any fat, oil, or oleaginous substance or compound thereof, not produced from unadulterated milk or cream from the same, which shall be in imitation of yellow butter produced from pure unadulterated milk or cream of the same: provided. That nothing in this act shall be construed to prohibit the manufacture or sale of oleomargarine in a separate and distinct form, and in such manner as vrill advise the con- sumer of its real character, free from coloration or ingredient that causes it to look like butter. "Section 2. Whoever violates any of the provisions of section one of this act shall be punished by a fine of not less than one 68$ PLUMLEY V. MASSACHUSETTS. 687 hundred nor more than five hundred dollars, or by imprisonment in the house of correction for a term not exceeding one year. . The defendant was found guilty of the ofEense charged. The court adjudged that he pay a fine of one hundred dollars and on default thereof stand committed in the common jail of SufEolk County until the fine was paid. Such default having occurred, a writ of commitment was issued under which he was taken for the purpose of imprisoning him in jail until the fine was paid. He sued out a writ of haieas corpvs from the Supreme Judicial Court of Massachusetts upon the ground that he was restrained of his liberty in violation of the Constitution and laws of the United, States. In his petition for the writ the accused set forth, in substance, that at the time and place charged he ofEered for sale and sold one package containing ten pounds of oleomargarine, manufactured from pure animal fats or substances and designed to take the place of butter produced from pure, unadulterated milk or cream. He also alleged that the oleomargarine in question was manufactured by a firm of which he was an agent, and the members of which were citizens and residents of Illinois engaged at the city of Chicago in the business of manufacturing that article and ship- ping it to various cities, towns, and places in Illinois and in other States and there selling the samej and that all oleomargarine manufactured by their firm and by other leading manufacturers was a wholesome, nutritious, palatable article of food, in no way deleterious to the public health and welfare. The petitioner claimed that the statute of Massachusetts was repugnant to the clause of the Constitution providing that the Congress shall have power to regulate commerce among the several States; to the clause declaring that the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States; to the clause providing that no State shall make or enforce any law which shall abridge the privileges or im- munities of citizens of the United States, nor deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws; to the clause declaring that private property shall not be taken for public purposes; and to the act of Congress of August 2, 1886, c. 840, entitled "An act defining butter, also imposing a 688 CASES ON CONSTITUTIONAL LAW. tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine." 34 Stat. 209; Eev. Stat. Supple, 2d ed. 505 It was adjudged that the prisoner be remanded to the custody of the keeper of the common jail to be therein confined, the opinion of that court being that the statute of Massachusetts was not in violation of the Constitution or laws of the United States, and, consequently, that the petitioner was not illegally restrained of his liberty. 156 Mass. 236. The present writ of error brings up that judgment for review. The learned counsel for the appellant states that Congress in the act of August 3, 1886, has legislated fully on the subject of oleomargarine. This may be true so far as the purposes of that act are concerned. But there is no ground to suppose that Con- gress intended in that enactment to interfere with the exercise by the States of any authority they could rightfully exercise over the sale within their respective limits of the article defined as oleomargarine. The statute imposed certain special taxes upon manufacturers of oleomargarine, as well as upon wholesale and retail dealers in that compound. And it is expressly declared (§3) that sections 3333 to 3341 inclusive and section 3243 of the Jlevised Statutes, Title Internal Eevenue, "are, so far as applic- able, made to extend to and include and apply to the special taxes" so imposed, "and to the persons upon whom they are im- posed." Section 3243 of the Eevised Statutes is in these words: "The payment of any tax imposed by the internal revenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any State for carrying on the same within such State, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such a State or in places prohibited by municipal law; nor shall the payment of any such tax be held to prohibit any State from placing a duty or tax on the same trade or business, for State or other purposes." It is manifest that this section was incorporated into the act of August 2, 1886, to make it clear that Congress had no purpose to restrict the power of the State over the subject of the manufacture and sale of oleomargarine within their respective limits. The taxes prescribed by that act were imposed for national purposes, and their imposition did not give authority to those who paid PLUMLEY T. MASSACHUSETTS. 689 them to engage in the manufacture or sale of oleomargarine in any State which lawfully forbade such manufacture or sale, or to disregard any regulation which a State might lawfully pre- scribe in reference to that article. License Tax Cases, 5 Wall. 462, 474; Pervear v. Commonwealth, 5 "Wall. 475; United States T. Dewitt, 9 Wall. 41. Nor was the act of Congress relating to oleomargarine intended as a regulation of commerce among these States. Its provisions do not have special application to the transfer of oleomargarine from one State of the Union to another. They relieve the manu- facturer or seller, if he conforms to the regulations prescribed by Congress or by the Commissioner of Internal Eevenue under the authority conferred upon him in that regard, from penalty or punishment so far as the general government is concerned, but they do not interfere with the exercise by the States of any authority they possess of preventing deception or fraud in the sales of property within their respective limits. The vital question in this case is, therefore, unaffected by the act of Congress or by any regulations that have been established in execution of its provisions. That question is, whether, as con- tended by the petitioner, the statute under examination in its application to sales of oleomargarine brought into Massachusetts from other States is in conflict with the clause of the Constitution of the United States investing Congress with power to regulate commerce among the several States. This is the only question the learned counsel for the petitioner urges upon our attention, and, in view of the decision in Powell v. Pennsylvania, 127 U. S. 678, is the only one we need consider. It will be observed that the statute of Massachusetts which is alleged to be repugnant to the commerce clause of the Constitu- tion does not prohibit the manufacture or sale of all oleomargar- ine, but only such as is colored in imitation of yellow butter produced from pure unadulterated milk or cream of such milk. If free from coloration or ingredient that "causes it to look like butter," the right to sell it "in a separate and distinct form, and in such manner as will advise the consumer of its real character," is neither restricted nor prohibited. It appears, in this case, that oleomargarine, in its natural condition, is of "a light yellowish color," and that the article sold by the accused was artificially colored "in imitation of yellow butter." Now, the real object of 690 CASES ON CONSTITUTIONAL LAW. coloring oleomargarine so as to make it look like genuine butter is that it may appear to be what it is not, and thus induce unwary purchasers who do not closely scrutinize the label upon the package in which it is contained, to buy it as and for butter pro- duced from unadulterated milk or cream from such milk. The suggestion that oleomargarine is artificially colored so as to render it more palatable and attractive can only mean that customers are deluded, by such coloration, into believing that they are getting genuine butter. If any one thinks that oleomargarine, not artificially colored so as to cause it to look like butter, is as palatable or as wholesome for purposes of food as pure butter, he is, as already observed, at liberty under the statutes of Massa- chusetts to manufacture it in that State or to sell it there in such a manner as to inform the customer of its real character. He is only forbidden to practice, in such matters, a fraud upon the general public. The statute seeks to suppress false pretences and to promote fair dealing in the sale of an article of food. It com- pels the sale of oleomargarine for what it really is, by preventing its sale for what it is not. Can it be that the Constitution of the United States secures to any one the privilege of manufacturing ^n article of food in such a manner as to induce the mass of j'people to believe that they are buying something which, in fact, (is wholly different from that which is offered for sale? Does the ifreedom of commerce among the States demand a recognition of ithe right to practice a deception upon the public in the sale of ;any articles, even those that may have become the subject of trade in different parts of the country? Several cases in this court were cited in argument to support the contention that the grant of power to Congress to regulate ■interstate commerce extended to such legislation as that enacted !by the Commonwealth of Massachusetts. Let us see whether ithose ca«.es announce any principle that compels this court to adjudge that the States have surrendered to the general govern- ment the power to prevent fraud in the sales of property. . . . . [Here follows a consideration of Eailroad Co. v. Husen, 95 U. :S. 465 ; Mionesota v. Barber, 136 U. S. 313; Brimmer v. Eebman, ,138 U. S. 7«-; Voight v. Wright, 141 U. S. 62; and Walling v. Michigan, 116 'JJ. S. 446.] It is obvious tthat none of the above cases presented the question ,now .before us. lEach of them involves the question whether one PLUMLEY V. MASSACHUSETTS. 691 State could burden interstate commerce by means of discrimina- tions enforced for the benefit of its own products and industries at the expense of the products and industries of other States. It did not become material in any of them to inquire, nor did this court inquire, whether a State, in the exercise of its police powers, may protect the public against the deception and fraud that would be involved in the sale within its limits for purposes of food of a compound that had been so prepared as to make it appear to be what it was not. While in each of those cases it was held that the reserved police powers of the States could not control the prohibitions of the Federal Constitution nor the powers of the government it created, (New Orleans Gas Co. v. Louisiana Light Co., 115 U. S. 650), it was distinctly stated that the grant to Congress of authority to regulate foreign and interstate com- merce did not involve a surrender by the States of their police powers. If the statute of Massachusetts had been so framed as to be applicable only to oleomargarine manufactured in other States, and which had been made in imitation of pure butter, the case would have been wholly different. But we have seen that it is not of that character, but is aimed at all oleomargarine arti- ficially colored so as to cause it to look like genuine butter and offered for sale in Massachusetts. In none of the above cases is there to be found a suggestion or intimation that the Constitution of the United States took from the States the power of preventing deception and fraud in the sale, within their respective limits, of articles in whatever State manufactured, or that that instrument secured to any one the iprivilege of committing a wrong against society. Referring to the general body of the law, from whatever source derived, existing in each State of the Union and regulating the rights and duties of all within its prisdiction, even those engaged in interstate commerce, this court, speaking by Mr. Justice Mat- thews, said in Smith v. Alabama, 134 U. S. 465, 476, that "it was in contemplation of the continued existenice of this separate system of law in each State that the Constitution of the United States was framed and ordained with such legislative powers as are therein granted expressly or by reasonable implication." It was, consequently, held in that case that a State may enact laws and prescribe regulations, applicable to carriers engaged in inter- state and foreign commerce, to insure the safety of persons car- 1693 CASES ON CONSTITUTIONAL LAW. ried by them as well as the safety of persons and things liable to be affected by their acts while they were within the territorial jurisdiction of the State. So, in Dent v. West Virginia, 139 U. S. 114, 132, which involved the validity of a state enactment making it a public offence for any one to practice medicine in West Virginia without complying with certain prescribed condi- tions, this court, speaking by Mr. Justice Field, said: "The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity as well as deception and fraud." If there be any subject over which it would seem the States ought to have plenary control, and the power to legislate in respect to which it ought not to be supposed was intended to be sur- rendered to the general government, it is the protection of the people against fraud and deception in the sale of food products. Such legislation may, indeed, indirectly or incidentally affect trade in such products transported from one State to another State. But that circumstance does not show that laws of the character alluded to are inconsistent with the power of Congress to regulate commerce among the States. For, as said by this court in Sherlock v. Ailing, 93 U. S. 99, 103: "In conferring upon Congress the regulation of commerce, it was never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country. Legislation, in a great variety of ways, may affect commerce and persons en- gaged in it without constituting a regulation of it within the meaning of the Constitution. . . . And it may be said gen- erally, that the legislation of a State, not directed against com- merce or any of its regulations, but relating to the rights, duties, and liabilities of citizens, and only indirectly and remotely affect- ing the operation of commerce, is of obligatory force upon citizens within its territorial jurisdiction, whether on land or water, or engaged in commerce, foreign or interstate, or in any other pur- suits." But the case most relied on by the petitioner to support the proposition that oleomargarine, being a recognized article of com- merce, may be introduced into a State and there sold in original PLXJMLEY V. MASSACHUSETTS. 693 packages, without any restriction being imposed by the State upon such sale, is Leisy v. Hardin, 135 U. S. 100. The majority of the court in that case held that ardent spirits, distilled liquors, ale and beer, were subjects of exchange, barter and trafSc, and, being articles of commerce, their sale while in the original package in which they are carried from one State to another State, could not without the assent of Congress be for- bidden by the latter State; that the parties in that case, who took beer from Illinois into Iowa, had the right, under the Constitu- tion of the United States, to sell it in Iowa in such original pack- ages, any statute of that State to the contrary notwithstanding; and that Iowa had no control over such beer until the original packages were broken and the beer in them became mingled in the common mass of property within its limits. 'Tip to that point of time," the court said, "we hold that in the absence of Congressional permission to do so, the State has no power to in- terfere by seizure, or any other action in prohibition of importa- tion and sale by the foreign or non-resident importer." P. 124. It is sufficient to say of Leisy t. Hardin that it did not in form or ia substance present the particular question now under con- sideration. The article which the majority of the court in that case held could be sold in Iowa in original packages, the statute of the State to the contrary notwithstanding, was beer manufac- tured in Illinois and shipped to the former State to be there sold in such packages. So far as the record disclosed, and so far as the contentions of the parties were concerned, the article there in question was what it appeared to be, namely, genuine beer, and not a liquid or drink colored artificially so as to cause it to look like beer. The language we have quoted from Leisy v. Hardin must be restrained in its application to the case actually presented for determination, and does not justify the broad contention that a State is powerless to prevent the sale of articles manufactured in or brought from another State, and subjects of traffic and com- merce, if their sale may cheat the people into purchasing some- thing they do not intend to buy and which is whoUy different from what its condition and appearance import. At the term succeeding the decision in Leisy v. Hardin, this court in Eahrer's Case, 140 U. S. 545, 546, sustained the validity of the act of Congress of August 8, 1890, e. 728, 26 Stat. 313, Imown as the .Wilson act, and in the light of the decision in Leisy v. Hardin, 694 CASES ON CONSTITUTIONAIi LAW. said, by tlie Chief Justice, that "the power of the State to impose restraints and burdens upon persons and property in conservation and promotion of the public health, good order, and prosperity, is a power originally and always belonging to the States, not sur- rendered by them to the general government nor directly restrained by the Constitution of the United States, and essentially exclusive," and that "it is not to be doubted that the power to make the ordi- nary regulations of police remains with the individual States, and cannot be assumed by the national government." The judgment of the court below is supported by many well- considered cases. In People v. Arenburg, 105 K Y. 133, 129, 130, the precise question now before us came before the Court of Appeals of New York. That court, after referring to its decision in .People v. Marx, 99 N". Y. 377, 385, adjudging a statute of New York re- lating to the manufacture of olemargarine to be in violation of the fundamental right and privilege of every American citizen to adopt and follow such lawful industrial pursuit, not injurious to the community, as he may see fit, said: "Assuming, as is claimed, that butter made from animal fat or oil is as wholesome, nutritious, and suitable for food as dairy butter; that it is composed of the same elements and is substantially the same article, except as re- gards its origin, and that it is cheaper, and that it would be a violation of the constitutional rights and liberties of the people to prohibit them from manufacturing or dealing in it, for the mere purpose of protecting the producers of dairy butter against com- petition, yet it cannot be claimed that the producers of butter, made from animal fat, or oils, have any constitutional right to resort to devices for the purpose of making their product resemble in appearance the more expensive article known as dairy butter, or that it is beyond the power of the legislature to enact such laws as they may deem necessary to prevent the simulated article being put upon the market in such a form and manner as to be calculated to deceive." "If it possesses," continued the court, "the merits which are claimed for it, and is innocuous, those making and dealing in it should be protected in the enjoyment of liberty in those respects, but they may legally be required to sell it for and as what it actually is and upon its own merits, and are not en- titled to the benefits of any additional market value which may be imparted to it by resorting to artificial means to make it re- PLUMLBY V. MASSACHUSETTS. 695 semble dairy butter in appearance. It may be butter, but it la not butter made from cream, and the difference in cost or in market value, if no other, would make it a fraud to pass off one article for the other." Again: "The statutory prohibition is aimed at a designed and intentional imitation of dairy butter, in manufacturing the new product and not at a resemblance in qualities inherent in the articles themselves and icommon to both." The court, therefore, held that artificial coloring of oleomargarine for the mere purpose of making it resemble dairy butter came within the statutory prohibition against imitation, and "that such prohibition is within the power of the legislature, and rests upon .the same principle which would sustain a prohibition of coloring winter dairy butter for the purpose of enhancing its market price by making it resemble summer dairy butter, should the legislature deem such a prohibition necessary or expedient. ... [Here follow citations from McAllister v. State, 72 Maryland, 390; Water- bury V. Newton, 21 Vroom (50 N". J. Law), 534; State v. Marshall, 64 N. H. 649 ; and State v. Addington, 7? Missouri, 110.] In Railroad Co. v. Husen, above cited, the court, speaking gen- erally, said that the police power of a State extended to the mak- ing of regulations "promotive of domestic order, morals, health, and safety." It was there held, among other things, to be "within the range of legislative action to define the mode and manner in which every one may so use his own as not to injure others," and that "the police powers of a State justified the adoption of pre- cautionary measures against social evils," and the enactment of such laws as would have "immediate connection with the protection of persons and property against the noxious acts of others." It has therefore been adjudged that the States may legislate to prevent the spread of crime, and may exclude from their limits paupers, convicts, persons likely to become a public charge, and persons afOicted with contagious or infectious diseases. These and other like things having immediate 'connection with the health, morals, and the safety of the people, may be done by the States in the exercise of the right of self-defense. And yet it is supposed that the owners of a compound which has 'been put in a condition to cheat the public into believing that it is a particular article of food in daily use and eagerly sought by people in every condition of Jife, are protected by the Constitution in making a sale of it against the will of the State in which it is offered for sale, be- 696 CASES ON CONSTITUTIONAL LAW. cause of the eirciiinstaiice that it is an original package, and has become a subject of ordinary trafSc. We are unwilling to accept this view. We are of opinion that it is within the power of a State to exclude from its markets any compound manufactured in another State, which has been artiiieially 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. The Constitution of the United States does not secure to any one the privilege of defrauding the public. The deception against which the statute of Massachusetts is aimed is an offence against society; and the States are as competent to protect their people against such offences or wrongs as they are to protect them against crimes or wrongs of more serious character. And this protection may be given without violating any right se- cured by the national Constitution, and without infringing the authority of the general government. A State enactment forbid- ding the sale of deceitful imitations of articles of food in general use among the people does not abridge any privilege secured to citizens of the United States, nor, in any just sense, interfere with the freedom of commerce among the several States. It is legisla- tion which "can be most advantageously exercised by the States themselves." Gibbons v. Ogden, Wheat. 1, 203. We are not unmindful of the fact — ^indeed, this court has often had occasion to observe — that the acknowledged power of the States to protect the morals, the health, and safety of their people by appropriate legislation, sometimes 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, "representing," as this court, speaking by Chief Justice Marshall, has said, "the rare and difficult scheme of one general government, whose action extends over the whole, but which possesses only certain enumerated powers, and of numerous state govermnents, which retain and exercise all powers not dele- gated to the Union," the judiciary of the United States should not strike down a legislative enactment of a State, especially if it has direct iconnection with the social order, the health, and the morals of its people — ^unless such legislation plainly and palpably violates some right granted or secured by the national Constitution or en- PLUMLEY V. MASSACHUSETTS. 697 croaches upon the authority delegated to the United States for the attainment of objects of national eoncein. We cannot so adjudge in reference to the statute of Massachu- setts, and as the court below correctly held that the plaintifE in error was not restrained of his liberty in violation of the Consti- tution of the United States, the judgment must be aflBrmed. Me. Justice jAOKSOisr, now absent, was present at the argument and participated in the decision of this case. He concurs in this opinion. Judgment affirmed. [Mr. Chief Justice Fulleb, with whom concurred Mb. Justice Field and Mr. Justice Brewer, delivered a dissenting opinion.] LOTTERY CASE. CHAMPION V. AMES. 188 U. S. 321. Decided February 23, 1903. [By an act of Congress of March 2, 1895, entitled "An act for the suppression of lottery traffic through national and interstate com- merce and the postal service subject to the jurisdiction and laws of the United States," it was provided "That any person who shall cause to be brought within the United States from abroad, for the purpose of disposing of the same, or deposited in or carried by the mails of the United States, or carried from one State to another in the United States, any paper, certificate, or instrument purporting to be or represent a ticket, chance, share, or interest in or depend- ent upon the event of a lottery, so-called gift concert, or similar enterprise, offering prizes dependent upon lot or chance, or shall cause any advertisement of such lottery, so-called gift concert or similar enterprises, offering prizes dependent upon lot or chance, to be brought into the United States, or deposited in or carried by the mails of the United States, or transferred from one State to another in the same, shall be punishable in [for] the first offence by imprisonment for not more than two years, or by a fine of not more than one thousand dollars, or both, and in the second and after offences by such imprisonment only." W. P. Champion was 698 CASES ON CONSTITUTIONAL LAW. arrested and held for trial in the District Court of the Northem District of Texas for having deposited with the Wells-Fargo Ex- press Company for transmission from Dallas, Texas, to Fresno, California, a package containing lottery tickets issued by the Pan- American Lottery Company. Whereupon he sued out a writ of habeas corpus upon the theory that the act of 1895, under which it was proposed to try him, was unconstitutional and void.] Mk. Justice Haexan delivered the opinion of the court. The appellant insists that the carrying of lottery tickets from one State to another State by an express company engaged in carrying freight an-d packages from State to State, although such tickets may be contained in a box or package, does not constitute, and cannot by any act of Congress be legally made to constitute, commerce among the States within the meaniag of the clause of the Constitution of the United States providing that Congress shall have power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes;" conse- quently, that Congress cannot make it an offense to cause such tickets to be carried from one State to another. The Grovernment insists that express companies, when engaged, for hire, in the business of transportation from one State to an- other, are instrumentalities of commerce among the States; that the carrying of lottery tickets from one State to another is com- merce which Congress may regulate ; and that as a means of execut- ing the power to regulate interstate commerce Congress may make it an offense against the United States to cause lottery tickets to be carried from one State to another. The questions presented by these opposing contentions are of great moment, and are entitled to receive, as they have received, the most careful consideration. What is the import of the word "commerce" as used in the Con- stitution? It is not defined by that instrument. Undoubtedly, the carrying from one State to another by independent carriers of things or commodities that are ordinary subjects of traffic, and which have in themselves a recognized value in money, constitutes interstate commerce. But does not commerce among the several States include something more? Does not the carrying from one State to another, by independent carriers, of lottery tickets that CHAMPION V. AMES. 699 entitle the holder to the payment of a certain amount of money therein specified also constitute commerce among the States? It is contended by the parties that these questions are answered in the former decisions of this court, the Government insisting that the principles heretofore announced support its position, while the contrary is confidently asserted by the appellant. This makes it necessary to ascertain the import of such decisions. Upon that in- quiry we now enter, premising that some propositions were ad- vanced in argument that need not be considered. In the examina- tion of former judgments it will be best to look at them somewhat in the order in which they were rendered. When prior adjudica- tions have been thus collated the particular grounds upon which the judgment in the present case must necessarily rest can be readily determined. We may here remark that some of the cases referred to may not bear directly upon the questions necessary to be decided, but attention will be directed to them as throwing light upon the general inquiry as to the meaning and scope of the com- merce clause of the Constitution. . . . [Here follow citations from Gibbons v. Ogden, 9 Wheaton 1; Brown v. Maryland, 12 Wheaton, 419; The Passenger Cases, 7 Howard 283; Almy v. California, 24 Howard 169; Woodruff v. Parham, 8 Wallace 123; Henderson &e v. Mayor &c, 92 U. S. 259; Pensacola Telegraph Co. v. Western Union Telegraph Co., 96 U. S. 1 ; County of Mobile v. Kimball, 102 U. S. 691 ; Telegraph Co. V. Texas, 105 U. S. 460; Brown v. Houston, 114 U. S. 622; Pickard v. Pullman Southern Car Co., 117 U. S. 34; Western Union Telegraph Co. v. Pendleton, 123 U. S. 347 ; Covington &c Bridge Co. v. Kentucky, 154 U. S. 204 and Hanley &c. v. Kansas City Southern Railway, 187 U. S. 617.] This reference to prior adjudications could be extended if it were necessary to do so. The cases cited, however, sufBciently indicate the grounds upon which this court has proceeded when determining the meaning and scope of the commerce clause. They show that commerce among the States embraces navigation, inter- course, communication, tralfic, the transit of persons, and the transmission of messages by telegraph. They also show that the power to regulate commerce among the several States is vested in Congress as absolutely as it would be in a single government, hav- ing in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States; that 700 CASES ON CONSTITUTIONAL LAW, such power is plenary, complete in itself, and may be exerted by Congress to its utmost extent, subject only to such limitations as the Constitution imposes upon the exercise of the powers granted by it; and that in determining the character of the regulations to be adopted Congress has a large discretion which is not to be con- trolled by the courts, simply because, in their opinion, such regu- lations may not be the best or most effective that could be em- ployed. We come, then, to inquire whether there is any solid foundation upon which to rest the contention that Congress may not regulate the carrying of lottery tickets from one State to another, at least by corporations or companies whose business it is, for hire, to carry tangible property from one State to another. It was said in argument that lottery tickets are not of any real or substantial value in themselves, and therefore are not subjects of commerce. If that were conceded to be the only legal test as to what are to be deemed subjects of the commerce that may be regu- lated by Congress, we cannot accept as accurate the broad state- ment that such tickets are of no value. Upon their face they showed that the lottery company offered a large capital prize, to be paid to the holder of the ticket winning the prize at the drawing advertised to be held at Asuncion, Paraguay. Money was placed on deposit in different banks in the United States to be applied by the agents representing the lottery company to the prompt pay- ment of prizes. These tickets were the subject of traffic; they could have been sold; and the holder was assured that the company would pay to him the amount of the prize drawn. That the holder might not have been able to enforce his claim in the courts of any country making the drawing of lotteries illegal and forbidding the circulation of lottery tickets, did not change the fact that the tickets issued by the foreign company represented so much money payable to the person holding them and who might draw the prizes affixed to them. Even if a holder did not draw a prize, the tickets, before the drawing, had a money value in the market among those who chose to sell or buy lottery tickets. In short, a lottery ticket is a subject of traffic, and is so designated in the act of 1895. 28 Stat, at L. 963. That fact is not without significance in view of what this court has said. That act, counsel for the accused well remarks, "was intended to supplement the provisions of prior acts, excluding lottery tickets from the mails, and prohibiting the im- CHAMPION v. AMES. 701 portation of lottery matter from abroad, and to prohibit the act of causing lottery tickets to be carried, and lottery advertisements to be transferred from one State to another by any means or method." 15 Stat, at L. 196; 17 Stat, at L. 303; 19 Stat, at L. 90; Eev. Stat. § 3894; 36 Stat, at L. 465; 38 Stat, at L." 963. We are of opinion that lottery tickets are subjects of traffic, and therefore are subjects of commerce, and the regulation of the car- riage of such tickets from State to State, at least by independent carriers, is a regulation of commerce among the several States. But it is said that the statute in question does not regulate the carrying of lottery tickets from State to State, but by punishing those who cause them to be so carried Congress in effect prohibits such carrying; that in respect of the carrying from one State to another of articles or things that are, in fact, or according to usage in business, the subjects of commerce, the authority given Congress was not to prohibit, but only to regulate. This view was earnestly pressed at the bar by learned counsel, and must be examined. It is to be remarked that the Constitution does not define what is to be deemed a legitimate regulation of interstate commerce. In Gibbons v. Ogden it was said that the power to regulate such com- merce is the power to prescribe the rule by which it is to be gov- erned. But this general observation leaves it to be determined, when the question comes before the court, whether Congress in prescribing a particular rule, has exceeded its power under the Constitution. While our Government must be acknowledged by all to be one of enumerated powers (M'CuUough v. Maryland, 4 Wheat. 316, 405, 407), the Constitution does not attempt to set forth all the means by which such powers may be carried into execution. It leaves to Congress a large discretion as to the means that may be employed in executing a given power. The sound construction of the Constitution^ this court has said, "must allow to the national legislature 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 high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional." 4 Wheat. 421. We have said that the carrying from State to State of lottery 702 CASES ON CONSTITUTIONAL LAW. tickets constitutes interstate commerce, and that the regulation of such commerce is within the power of Congress under the Con- stitution. Are we prepared to say that a provision which is, in efEect, a prohibition of the carriage of such articles from State to State is not a fit or appropriate mode for the regulation of that particular kind of commerce ? If lottery traffic, carried on through interstate commerce, is a matter of which Congress may take cognizance and over which its power may be exerted, can it be pos- sible that it must tolerate the traffic, and simply regulate the man- ner in which it may be carried on ? Or may not Congress, for the protection of the people of all the States, and under the power to regulate interstate commerce, devise such means, within the scope of the Constitution, and not prohibited by it, as wiU drive that traffic out of commerce among the States? In determining whether regulation may not under some circum- stances properly take the form or have the efEect of prohibition, the nature of the interstate traffic which it was sought by the act of May 2d, 1895, to suppress cannot be overlooked. When enacting that statute Congress no doubt shared the views upon the subject of lotteries heretofore expressed by this court. In Phalen v. Vir- ginia, 8 How. 163, 168, after observing that the suppression of nuisances injurious to public health or morality is among the most important duties of government, this court said : "Experience has shown that the common forms of gambling are comparatively in- nocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwell- ing ; it reaches every class ; it preys upon the hard earnings of the poor; it plunders the ignorant and simple." In other cases we have adjudged that authority given by legislative enactment to carry on a lottery, although based upon a consideration in money, was not protected by the contract clause of the Constitution; this, for the reason that no State may bargain away its power to protect the public morals, nor excuse its failure to perform a public duty by saying that it had agreed, by legislative enactment, not to do so. Stone v. Mississij^i, 101 U. S. 814; Douglas v. Kentucky, 168 U. S. 488. If a State, when considering legislation for the suppression of lotteries within its own limits, may properly take into view the evils that inhere in the raising of money, in that mode, why may CHAMPION V. AMES. 703 not Congress, invested with the power to regulate commerce among the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another ? In this connection it must not be forgotten that the power of Congress to regulate commerce among the States is plenary, is complete in itself, and is subject to no limitations except such as may be foimd in the Constitution. What provision in that instrument can be regarded as limiting the exercise of the power granted? What clause can be cited which, in any degree, countenances the sug- gestion that one may, of right, carry or cause to be carried from one State to another that which will harm the public morals ? We cannot think of any clause of that instrument that could possibly be invoked by those who assert their right to send lottery tickets from State to State except the one providing that no person shall be deprived of his liberty without due process of law. We have said that the liberty protected by the Constitution embraces the right to be free in the enjoyment of one's 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." Allgeyer v. Louisiana, 165 TJ. S. 578, 589. But surely it will not be said to be a part of anyone's liberty, as recog- nized by the supreme law of the land, that he shall be allowed to . introduce into commerce among the States an element that will be confessedly injurious to the public morals. If it be said that the act of 1895 is inconsistent with the Tenth Amendment, reserving to the States respectively, or to the people, the powers not delegated to the United States, the answer is that the power to regulate commerce among the States has been ex- pressly delegated to Cbngress. Besides, Congress, by that act, does not assume to interfere with traffic or commerce in lottery tickets carried on exclusively within the limits of any State, but has in view only commerce of that kind among the several States. It has not assumed to interfere with the completely internal affairs of any State, and has only legislated in respect of a matter which concerns the people of the United States. As a State may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the "widespread pestilence of lotteries" and to pro- 704 CASES ON CONSTITUTIONAL LAW. tect the commerce, which concerns all the States, may prohibit the carrying of lottery tickets from one State to another. In legislat- ing upon the subject of the traffic in lottery tickets, as carried on through interstate commerce. Congress only supplemented the action of those States-rperhaps all of them — ^which, for the pro- tection of the public morals, prohibit the drawing of lotteries, as well as the sale or circulation of lottery tickets, within their re- spective limits. It said, in effect, that it would not permit the declared policy of the States, which sought to protect their people against the mischiefs of the lottery business, to be overthrown or disregarded by the agency of interstate commerce. We should hesitate long before adjudging that an evil of such appalling char- acter, carried on through interstate conmieree, cannot be met and crushed by the only power competent to that end. We say com- petent to that end, because Congress alone has the power to occupy, by legislation, the whole field of interstate commerce. What was said by this court upon a former occasion may well be here re- peated: "The framers of the Constitution never intended that the legislative power of the Nation should find itself incapable of disposing of a subject-matter specifically committed to its charge." In re Eahrer, 140 U. S. 545, 563. If the carrying of lottery tickets from one State to another be interstate commerce, and if Congress is of opinion that an effective regulation for the suppres- sion of lotteries, carried on through such commerce, is to make it a criminal offense to cause lottery tickets to be carried from one State to another, we know of no authority in the courts to hold that the means thus devised are not appropriate and necessary to pro- tect the country at large against a species of interstate commerce which, although in general use and somewhat favored in both national and state legislation in the early history of the country, has grown into disrepute, and has become offensive to the entire people of the Nation. It is a kind of traffic which no one can be entitled to pursue as of right. That regulation may sometimes appropriately assume the form of prohibition is also illustrated by the case of diseased cattle, trans- ported from one State to another. Such cattle may have, not- withstanding their condition, a value in money for some purposes, and yet it cannot be doubted that Congress, under its power to regulate commerce, may either provide for their being inspected before transportation begins, or, in its discretion, may prohibit CHAMPION V. AMES. 705 their being transported from one State to another. Indeed, by the act of May 29th, 1884, chap. 60, Congress has provided: "That no railroad company within the United States, or the owners or masters of any steam or sailing, or other vessel or boat, shall re- ceive for transportation, or transport, from one State or Territory to another, or from any State into the District of Columbia, or from the District into any State, any live stock affected with any contagious, infectious, or communicable disease, and especially the disease known as pleuro-pneumonia; nor shall any person, com- pany, or corporation deliver for such transportation to any rail- road company or master or owner of any boat or vessel, any live stock, knowing them to be affected with any contagious, infectious, or commimicable disease; nor shall any person, company, or cor- poration drive on foot or transport in private conveyance from one State or Territory to another, or from any State into the Dis- trict of Columbia, or from the District into any State, any live stock, knowing them to be affected with any contagious, infectious, or communicable disease, and especially the disease known as pleuro-pneumonia." Eeid v. Colorado, 187 U. S. 137. The act of July 8d, 1890, known as the Sherman Anti-Trust Act, and which is based upon the power of Congress to regulate commerce among the States, is an illustration of the proposition that regulation may take the form of prohibition. The object of that act was to protect trade and commerce against unlawful restraints and monopolies. To accomplish this object Congress declared cer- tain contracts to be illegal. That act, in effect, prohibited the doing of certain things, and its prohibitory clauses have been sustained in several cases as valid under the power of Congress to regulate in- terstate commerce. United States v. Trans-Missouri Freight Asso- ciation, 166 U. S. 390 ; United States v. Joint Traffic Association, 171 U. S. 505 ; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211. In the case last named the court, referring to the power of Congress to regulate commerce among the States, said: "In Gibbons v. Ogden, supra, the power was declared to be com- plete in itself, and to acknowledge no limitations other than are prescribed by the Constitution. Under this grant of power to Congress that body, in our judgment, may enact such legislation as shall declare void and prohibit the performance of any contract between individuals or corporations where the natural and direct effect of such a contract will be, when carried out, to directly, and 45 706 CASES ON CONSTITUTIONAL LAW. not as a mere incident to other and innocent purposes, regulate to any substantial eztent interstate commerce. (And when we speak of interstate we also include in our meaning foreign commerce.) We do not assent to the correctness of the proposition that the con- stitutional guaranty of liberty to the individual to enter into private contracts limits the power of Congress and prevents it from legislating upon the subject of contracts of the class mentioned. The power to regulate interstate commerce is, as stated by Chief Justice Marshall, full and complete in Congress, and there is no limitation in the grant of the power which excludes private con- tracts of the nature in question from the jurisdiction of that body. Nor is any such limitation contained in that other clause of the Constitution, which provides that no person shall be deprived of life, liberty, or property without due process of law." Again : "The provision in the Constitution does not, as we believe, exclude Con- gress from legislating with regard to contracts of the above nature while in the exercise of its constitutional right to regulate com- merce among the States. On the contrary, we think the provision regarding the liberty of the citizen is, to some extent, limited by the commerce clause of the Constitution, and that the power of Congress to regulate interstate commerce comprises the right to enact a law prohibiting the citizen from entering into those private contracts which directly and substantially, and not merely in- directly, remotely, incidentally, and collaterally, regulate to a greater or less degree commerce among the States." That regulation may sometimes take the form or have the effect of prohibition is also illustrated in the case of In re Rahrer, 140 U. S. 545. In Mugler v. Kansas, 123 U. S. 623, it was adjudged that state legislation prohibiting the manufacture of spirituous, malt, vinous, fermented, or other intoxicating liquors within the limits of the State, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege, or immunity secured by the Constitution of the TJnited States or by the amendments thereto. Subsequently in Bowman v. Chicago & K W. E. Co. 125 U. S. 465, this court held that ardent spirits, distilled liquors, ale, and beer were subjects of exchange, barter, and traffic, and were so recognized by the usages of the commercial world, as well as by the laws of Congress and the decisions of the courts. In Leisy v. Hardin, 135 IT. S. 100, the court again held that spirituous liquors were recognized articles of commerce, and CHAMPION r. AMES. 707 declared a statute of Iowa prohibiting the sale within its limits of any intoxicating liquors, except for pharmaceutical, medici- nal, chemical, or sacramental purposes, under a state license, to be repugnant to the commerce clause of the Constitution, if applied to the sale, within the State, by the importer, in the original, unbroken packages, of such liquors manufactured in and brought from another State. And in determining whether a State could prohibit the sale within its limits, in original, unbroken packages, of ardent spirits, distilled liquors, ale, and beer, im- ported from another State, this court said that they were recog- nized by the laws of Congress as well as by the commercial world as "subjects of exchange, barter, and traffic," and that "whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognized as subjects of commerce are not such." Leisy v. Hardin, 135 U. S. 100, 110, 125. Then followed the passage by Congress of the act of August 8th, 1890, 26 Stat, at L. 313, chap. 728, providing "that all fer- mented, distilled, or other intoxicating liquors or liquids trans- ported into any State or Territory, or remaiaiug therein for use, consumption, sale, or storage therein, shall, upon arrival in such State or Territory, be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise." That act was sustained in the Rahrer case as a valid exercise of the power of Congress to regulate commerce among the States. In Rhodes V. Iowa, 170 U. S. 412, 426, that statute— all of its provisions being regarded — ^was held as not causing the power of the. State to attach to an interstate commerce shipment of intoxi- cating liquiWs "whilst the merchandise was in transit under such shipment, and until its arrival at the point of destination and de- livery there to the consignee." Thus under its power to regulate interstate commerce, as in- volved in the transportation, in original packages, of ardent spirits from one State to another. Congress, by the necessary effect of the act of 1890 made it impossible to transport such packages to places within a prohibitoiy State and there dispose of their contents by; 708 CASES ON CONSTITUTIONAL LAW. sale ; although it had been previously held that ardent spirits were recognized articles of commerce and, until Congress otherwise pro- vided, could be imported into a State, and sold in the original packages, despite the will of the State. If at the time of the pas- sage of the act of 1890 all the States had enacted liquor laws pro- hibiting the sale of intoxicating liquors within their respective limits, then the act would have had the necessary effect to exclude ardent spirits altogether from commerce among the States ; for no one would ship, for purposes of sale, packages containing such spirits to points within any State that forbade their sale at any time or place, even in unbroken packages, and, in addition, pro- vided for the seizure and forfeiture of such packages. So that we have in the Eahrer ease a recognition of the principle that the power of Congress to regulate interstate commerce may sometimes be exerted with the effect of excludiag particular articles from such commerce. It is said, however, that the principle that in order to suppress lotteries carried on through interstate commerce. Congress may exclude lottery tickets from such commerce, leads necessarily to the conclusion that Congress may arbitrarily exclude from commerce among the States any article, commodity, or thing, of whatever kind or nature, or however useful or valuable, which it may choose, no matter with what motive, to declare shall not be carried from one State to another. It will be time enough to consider the con- stitutionality of such legislation when we must do so. The present case does not require the court to declare the full extent of the power that Congress may exercise in the regulation of commerce among the States. We may, however, repeat, in this connection, what the court has heretofore said, that the power of Congress to regulate commerce among the States, although plenary, cannot be deemed arbitrary, since it is subject to such limitations or re- strictions as are prescribed by the Constitution. This power, there- fore, may not be exercised so as to infringe rights secured or pro- tected by that instrument. It .would not be difficult to imagine legislation that would be Justly liable to such an objection as that stated, and be hostile to the objects for the accomplishment of which Congress was invested with the general power to. regulate commerce among the several States. But, as often said, the pos- sible abuse of a power is not an argument against its existence. There is probably no governmental power that may not be exerted CHAMPION V. AMES. 709 to the injury of the public. If what is done by Congress is mani- festly in excess of the powers granted to it, then upon the courts will rest the duty of adjudging that its action is neither legal nor binding upon the people. But if what Congress does is within the limits of its power, and is simply unwise or injurious, the remedy is that suggested by Chief Justice Marshall in Gibbons v. Ogden, when he said : "The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abusft: They are the restraints on which the people must often rely solely, in all representatiTe governments." The whole subject is too important, and the questions suggested by its consideration are too difficult of solution, to justify any at- tempt to lay down a rule for determining in advance the validity of every statute that may be enacted under the commerce clause. We decide nothing more in the present case than that lottery tickets are subjects of traffic among those who choose to sell or buy them ; that the carriage of such tickets by independent carriers from one State to another is therefore interstate commerce; that under its power to regulate commerce among the several States Congress — subject to the limitations imposed by the Constitution upon the exercise of the powers granted — ^has plenary authority over such commerce, and may prohibit the carriage of such tickets from State to State; and that legislation to that end, and of that character, is not inconsistent with any limitation or restriction imposed upon, the exercise of the powers granted to Congress. The judgment is Affirmed. [Mr. Chief Justice Fuller, with whom concurred Mr. Justice Brewer, Mr. Justice Shiras, and Mr. Justice Peck- ham, delivered a dissenting opinion.] CIVIL AND POLITICAL RIGHTS. UNITED STATES v. WONG KIM AEK. 169 U. S. 649. Decided March 28, 1898. Me. Justice Gray, after stating the case, delivered the opinion of the court. The facts of this ease, as agreed by the parties, are as follows : Wong Kim Ark wqs born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicile and residence therein at San Francisco ;they continued to reside and re- main in the United States until 1890, when they departed for China; and during all the time of their residence in the United States they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China. Wong Kim Ark, ever since his birth, has had but one residence, to wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence; and neither he, nor his parents acting for him, ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him therefrom. In 1890 (when he must have been about seventeen years of age) he departed for China on a temporary visit and with the intention of returning to the United States, and did return thereto by sea in the same year, and was per- mitted by the collector of customs to enter the United States, upon the sole ground that he was a native-bom citizen of the United States. After such return, he remained in the United States, claiming to be a citizen thereof, until 1894, when he (being about twenty-one years of age, but whether a little above or a little un- no UNITED STATES v. WONG KIM ARK. 711 der that age does not appear) again departed for China on a tem- porary visit and with the intention of returning to the United States; and he did return thereto by sea in August, 1895, and ap- plied to the collector of customs for permission to land; and was denied such permission, upon the sole ground that he was not a citizen of the United States. It is conceded that, if he is a citizen of the United States, the acts of Congress, kaown as the Chinese Exclusion Acts, prohibiting persons of the Chinese race, and especially Chinese laborers, from coming into the United States, do not and cannot apply to him. The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a per- manent 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 Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." I. In construing any act of legislation, whether a statute enact- ed by the legislature, or a constitution established by the people as the supreme law of the land, regard is to be had not only to all parts of the act itself, and of any former act of the same law- making power, of which the act in question is an amendment ; but also to the condition, and to the history, of the law as previously existing, and in the light of which the new act must be read and interpreted. The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-bom citizen of the United States." By the original Constitution, every representative in Congress is required to have been "seven years a citizen of the United States," and every senator to have been "nine years a citizen of the United States," and "no person except a natural-bom citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President." The Fourteenth Article of Amendment, besides de- claring that "all persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United 712 CASES ON CONSTITUTIONAL LAW. States and of the State wherein they reside," also declares that "no State shall make or enforce any law which shall ahridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." And the Fifteenth Article of Amendment declares 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 servitude." The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that "all persons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162 ; Ex parte Wilson, 114 U. S. 417, 422 ; Boyd v. United States, 116 U. S. 616, 624, 625; Smith v. Alabama, 124 U. S. 465. The language of the Constitution, as has been well said, could not be understood without reference to the common law. 1 Kent Com. 336; Bradley, J., in Moore v. United States, 91 U. S. 270, 374. ► • • • II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith" or "power," of the King. The prin- ciple embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-bom subjects. But the children, bom within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-bom subjects, because not bom within the allegiance, the obedience, or UNITED STATES v. WONG KIM ARK. 713 the power, or, as would be said at this day, within the jurisdiction of the King. . . . It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the do- minions possessed by the Crown of England, were within the al- legiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign State, or of an alien enemy in hostile occupa- tion of the place where the child was born. III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Inde- pendence, and in the United States afterwards, and continued to prevail under the Constitution as originally established IV. It was contended by one of the learned counsel for the United States that the rule of the Eoman law, by which the citi- zenship of the child followed that of the parent, was the true rule of international law as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considera- tions. But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and "mere birth within the realm gives the rights of a native-born citi- zen, independently of the origin of the father or mother, and of their domicile;" and children bom in a foreign country, of a French father who had not established his domicile there nor given up the intention of returning, were also deemed Frenchmen, as Laurent says, by "a favor, a sort of fiction," and Calvo, 'Tiy a sort of fiction of exterritoriality, considered as bom in France, and therefore invested with French nationality." Pothier, Traite des Personnes, pt. 1, tit. 2, sec. 1, nos. 43, 45; Walsh-Serrant v. Walsh-Serrant (1802), 3 Journal du Palais, 384; S. C, 8 Merlin, Jurisprudence (5th ed.), Domicile, § 13; Prefet du Nord v. Le- beau (1863), Journal du Palais, 1863, 313 and note; 1 Laurent, 714 CASES ON CONSTITUTIONAL LAW. Droit Civil, no. 331; 2 Calvo, Droit International (5th ed.), § 542 ; Coekbum on Nationality, 13, 14 ; Hall's International Law (4th ed.), § 68. The general principle of citizenship by birth with- in French territory prevailed until after the French Revolution, and was affirmed in successive constitutions, from the one adopted by the Constituent Assembly in 1791 to that of the French Ee- public in 1799. Constitutions et Chartes (ed. 1830), pp. 100, 136, 148, 186. The Code Napoleon of 1807 changed the law of France, and adopted, instead of the rule of country of birth, jtis soli, the rule of descent or blood, jus sanguinis, as the leading principle; but an eminent commentator has observed that the framers of that code "appear not to have wholly freed themselves from the an- cient rule of France, or rather, indeed, ancient rule of Europe — de la vieille regie francaise, ou flutot meme de la vieille regie europeenne — according to which nationality had always been, in former times, determined by the place of birth." 1 Demolombe, Cours de Code Napoleon (4th ed.), no. 146. The later modifications of the rule in Europe rest ijpon the con- stitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect of the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners' Eeport of 1869 out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr.Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquired British nationality at birth, and is a natural-bom British subject. Dicey, Conflict of Laws, 741. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birth- place, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzer- land, Sweden and Norway, yet it appears still to have been con- ferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Eussia. Coekbum on National- ity, 14-21. There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there was any settled and definite rule of in- UNITED STATES v. WONG KIM ABK. 715 temational law, generally recognized by civilized nations, incon- sistent with the ancient rule of citizenship by birth within the do- minion. Nor can it be doubted that it is the inherent right of every in- dependent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship. Both in England and in the United States, indeed, statutes have been passed, at various times, enacting that certain issue born abroad of English subjects, or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their pur- port; and they have never been considered, in either country, as affecting the citizenship of persons born within its domin- ion. .... By the Constitution of the United States, Congress was em- powered "to establish an uniform rule of naturalization." In the exercise of this power. Congress, by successive acts, begin- ning with the act entitled "An act to establish an uniform rule of naturalization" passed at the second session of the First Congress under the Constitution, has made provision for the admission to citizenship of three principal classes of persons. First. Aliens, having resided for a certain time "within the limits and under the jurisdiction of the United States," and naturalized individual- ly by proceedings in a court of record. Second. Children of persons so naturalized, "dwelling within the United States, and being under the age of twenty-one years at the time of such natu- ralization." Third. Foreign-born children of American citizens, coming within the definitions prescribed by Congress. Acts of ■March 26, 1790, c. 3; January 29, 1795, c. 20; June 18, 1798, c. 54; 1 Stat. 103, 414, 566; April 14, 1803, c. 28; March 26, 1804, c. 47; 2 Stat. 153, 292; February 10, 1855, c. 71; 10 Stat. 604; Kev. Stat. §§ 2165, 2172, 1993. . . . It thus clearly appears that, during the half century intervening between 1802 and 1855, there was no legislation whatever for the J tizenship of children born abroad, during that period, of Ameri- can parents who had not become citizens of the United States before the act of 1802; and that the act of 1855, like every other act of Congress upon the subject, has, by express proviso, restrict- ed the right of citizenship, thereby conferred upon foreign-born 'MS CASES ON CONSTITUTIONAL LAW. children of American citizens, to those children themselves, unless they became residents of the United States. Here is nothing to countenance the theory that a general rule of citizenship by blood or descent has displaced in this country the fundamental rule of citizenship by birth within its sovereignty. So far as we are informed, there is no authority, legislative, ex- ecutive or judicial, in England or America, which maintains or intimates that the statutes (whether considered as declaratory, or as merely prospective), conferring citizenship on foreign-bom children of citizens, have superseded or restricted, in any re- spect, the established rule of citizenship by birth within the do- minion. Even those authorities in this country, which have gone farthest towards holding such statutes to be but declaratory of the common law, have distinctly recognized and emphatically asserted the citizenship of native-born children of foreign parents. 3 Kent Com. 39, 50, 53, 258 note; Lynch v. Clarke, 1 Sandf. Ch. 583, 659 ; Ludlam v. Ludlam, 26 N. Y. 356, 371. Passing by questions once earnestly controverted, but finally put at rest by the Fourteenth Amendment of the Constitution, it is be- yond doubt that, before the enactment of the Civil Eights Act of 1866 or the adoption of the Constitutional Amendment, all white persons, at least, born within the sovereignty of the United States, whether children of citizens or of foreigners, excepting only chil- dren of ambassadors or public ministers of a foreign government, were native-born citizens of the United States. V. In the fore front, both of the Fourteenth Amendment of the Constitution, and of the Civil Eights Act of 1866, the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms. The Civil Eights Act, passed at the first session of the Thirty- ninth Congress, began by enacting that "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, ex- cept as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Terri- tory in the United States, to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit UNITED STATES v. WONG KIM ARK. 'ill of all laws and proceedings for the security of person and prop- erty, as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to none other, any law, stat- ute, ordinance, regulation or custom, to the contrary notwithstand- ing." Act of April 9, 1866, c. 31, § 1; 14 Stat. 27. The same Congress, shortly afterwards, evidently thinking it unwise, and perhaps unsafe, to leave so important a declaration of rights to depend upon an ordinary act of legislation, which might be repealed by any subsequent Congress, framed the Fourteenth Amendment of the Constitution, and on June 16, 1866, by joint resolution proposed it to the legislatures of the several States ; and on July 28, 1868, the Secretary of State issued a proclamation showing it to have been ratified by the legislatures of the requisite number of States. 14 Stat. 358 ; 15 Stat. 708. The first section of the Fourteenth Amendment of the Consti- tution begins with the words, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are cit- izens of the United States and of the State wherein they reside." As appears from the face of the amendment, as well as from the history of the times, this was not intended to impose any new re- strictions upon citizenship, or to prevent any persons from becom- ing citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes which had been denied in the opinion delivered by Chief Justice Taney in Dred Scott v. Sandford, (1857) 19 How. 393; 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. The Slaughterhouse Cases, (1873) 16 Wall. 36, 73; Strauder v. West Virginia, (1879) 100 U. S. 303, 306; Ex paHe Virginia, (1879) 100 U. S. 339, 345; Neal v. Delaware, (1880) 103 U. S. 370, 386; Elk v. Wilkins, (1884) 112 U. S. 94, 101. But the opening words, "All persons born," are general, not to say universal, restricted only by place and juris- diction, and not by color or race — as was clearly recognized in all the opinions delivered in the Slaughterhouse Cases, above cited. In those cases, the point adjudged was that a statute of Louis- iana, granting to a particular corporation the exclusive right for 718 CASES ON CONSTITUTIONAL LAW. twenty-five years to have and maintain slaugMerhouses within a certain district including the city of New Orleans, requiring all the cattle intended for sale or slaughter in that district to be brought to the yards and slaughterhouses of the grantee, author- izing all butchers to slaughter their cattle there, and empowering the grantee to exact a reasonable fee for each animal slaughtered, was within the police powers of the State, and not in conflict with the Thirteenth Amendment of the Constitution as creating an in- voluntary servitude, nor with the Fourteenth Amendment as abridging the privileges or immunities of citizens of the United States, or as depriving persons of their liberty or property with- out due process of law, or as denying to them the equal protection of the laws. Mr. Justice Miller, delivering the opinion of the majority of the court, after observing that the Thirteenth, Fourteenth and Fifteenth Articles of Amendment of the Constitution were all ad- dressed to the grievances of the negro race, and were designed to remedy them, continued as follows : "We do not say that no one else but the negro can share in this protection. Both the language and spirit of these Articles are to have their fair and just weight in any question of construction. Undoubtedly, while negro slavery alone was in the mind of the Congress which proposed the Thirteenth Article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this Amendment may safely be trusted to make it void. And so if other rights are assailed by the States, which properly and necessarily fall within the protection of these Articles, that protection will apply, though the party interested may not be of African descent." 16 Wall. 72. And in treating of the first clause of the Fourteenth Amendment, he said: "The distinction be- tween citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former into the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union." 16 Wall 73 74. ■ ' UNITED STATES v. "WONG KIM ARK. 719 Mr. Justice Field, in a dissenting opinion, in which Chief Justice Chase and Justices Swayne and Bradley concurred, said of the same clause: "It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adop- tion, and not upon the constitution or laws of any State or the condition of their ancestry." 16 Wall. 95, 111. Mr. Justice Bradley also said : "The question is now settled by the Fourteenth Amend- ment itself, that citizenship of the United States is the primary citizenship in this country ; and that state citizenship is secondary and derivative, depending upon citizenship of the United States and the citizen's place of residence. The States have not now, if they ever had, any power to restrict their citizenship to any classes or persons," 16 Wall. 112. And Itr. Justice Swayne added : "The language employed is unqualified in its scope. There is no ex- ception in its terms, and there can be properly none in their appli- cation. By the language 'citizens of the United States' wAs meant all such citizens; and by 'any person' was meant all persons within the jurisdiction of the State. No distinction is intimated on ac- count of race or color. This court has no authority to interpolate a limitation that is neither expressed nor implied. Our duty is to execute the law, not to make it. The protection provided was not intended to be confined to those of any particular race or class, but to embrace equally all races, classes and conditions of men." 16 Wall. 138, 129. Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this re- mark: "The phrase 'subject to its jurisdiction' was intended to ex- clude from its operation children of ministers, consuls, and citizens or subjects of foreign States, born within the United States." 16 Wall. 73. This was wholly aside from the question in judgment, and from the course of reasoning bearing upon that question. It was unsupported by any argument, or by any reference to au- thorities; and that it was not formulated with the same care and exactness, as if the case before the court had called for an exact definition of the phrase, is apparent from its classing foreign min- isters and consuls together — ^whereas it was then well settled law, as has since been recognized in a judgment of this court in which Mr. Justice Miller concurred, that consuls, as such, and unless ex- pressly invested with a diplomatic character in addition to their 720 CASES ON CONSTITUTIONAL LAW. ordinary powers, are not considered as entrusted with authority to represent their sovereign in his intercourse with foreign states or to vindicate his prerogatives, or entitled by the law of nations to the privileges and immunities of ambassadors or public ministers, but are subject to the jurisdiction, civil and criminal, of the courts of the countries in which they reside. 1 Kent Com. 44; Story, Con- flict of Laws, § 48; Wheaton, International Law, (8th edition) § 249; The Anne, (1818) 3 Wheat. 435, 445, 446; Gittings v. Craw- ford, (1838) Taney, 1, 10; In re Baiz, (1890) 135 U. S. 403, 434. In weighing a remark uttered under such circumstances, it is weU to bear in mind the often quoted words of Chief Justice Mar- shall : "It is a maxim not to be disregarded, that general expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subse- quent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated." Cohens v. Virginia, (1821) 6 Wheat. 264, 399. That neither Mr. Justice Miller, nor any of the justices who took part in the decision of The Slaughterhouse Cases, understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were ex- cluded from the operation of the first sentence of the Fourteenth Amendment, is manifest from a unanimous judgment of the court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: "Allegiance and protection are, in this connection" (that is, in relation to citizenship) "reciprocal obligations. The one is a compensation for the other: allegiance for protection, and pro- tection for allegiance." "At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country, of parents who were citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include zs citizens children born within the jurisdiction, without reference UNITED STATES v. WONG KIM ARK. 731 to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purpose of this case it is not necessary to solve this doubt. It is sufficient, for every- thing we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens." Minor v. Happersett, (1874) 31 Wall. 163, 166-168. The decision in that case was that a woman bom of citizen parents within the TTnited States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citi- zenship. The only adjudication that has been made by this court upon the meaning of the clause, "and subject to the jurisdiction thereof," in the leading provision of the Fourteenth Amendment, is Elk v. Wilkins, 113 U. S. 94, in which it was decided that an Indian bom a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe, and taken up his residence among the white citizens of a State, but who did not appear to have been naturalized or taxed, or in any way recognized or treated as a citizen, either by the United States or by the State, was not a citizen of the United States as a person bom in the United States, "and subject to the jurisdiction thereof," within the meaning of the clause in question. That decision was placed upon the grounds, that the meaning of those words, "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate alle- giance;" that by the Constitution, as originally established, "In- dians not taxed" were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the several States, and Congress was empowered to regulate commerce not only "with foreign nations" and among the several States, but "with the Indian tribes ;" that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed im- mediate allegiance to their several tribes, and were not part of the people of the United States ; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will, without the action or assent of the United States; and 46 723 CASES ON CONSTITUTIONAL LAW. that they were never deemed citizens, except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress ; and, therefore, that "Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense bom in the United States, are no more 'born in the United States, and subject to the jurisdiction thereof within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children bom within the United States of ambassadors or other public ministers of foreign nations." And it was observed that the language used, in defining citizenship, in the first section of the Civil Eights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was "all persons bom in the United States, and not subject to any foreign power, excluding Indians not taxed." 112 U. S. 99-103. Mr. Justice Harlan and Mr. Justice Woods, dissenting, were of opinion that the Indian in question, having severed himself from his tribe and become a bona fide resident of a State, had thereby become subject to the jurisdiction of the United States, within the meaning of the Fourteenth Amendment; and, in reference to the Civil Eights Act of 1866, said: "Beyond question, by that act, national citizenship was conferred directly upon all persons in this country, of whatever race (excluding only 'Indians not taxed'), who were born within the territorial limits of the United States, and were not subject to any foreign power. And that view was supported by reference to the debates in the Senate upon that act, and to the ineffectual veto thereof by President Johnson, in which he said: "By the first section of the bill, all persons bom in the United States, and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States. This provision comprehends the Chinese of the Pacific States, Indians subject to taxation, the people called Gypsies, as well as the entire race designated as blacks, persons of color, negroes, mulattoes, and persons of African blood. Every individual of those races, bom in the United States, is by the bill, made a citizen of the United States." 112 U. S. 112-114. The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to UNITED STATES v. WONG KIM ABK. 723 deny citizenship to children born in the United States of foreign parents of Caucasian, African or Mongolian descent, not in the diplomatic service of a foreign country. The real object of the Fourteenth Amendment of the Constitu- tion, 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, unkaown to the common law,) the two classes of cases — children born of alien euemies 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 citizenship by birth within the country. Calvin's Case, 7 Eep. 1, 186; Cockbum on Nationality, 7 ; Dicey, Conflict of Laws, 177 ; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155 ; 2 Kent. Com. 39, 43. The principles upon which each of these exceptions rests were long ago distinctly stated by the court. In United States v. Eice, (1819) 4 Wheat. 246, goods imported into Castine, in the State of Maine, while it was in the exclusive possession of the British authorities during the last war with England, were held not to be subject to duties under the revenue laws of the United States; because, as was said by Mr. Justice Story in delivering judgment : "By the conquest and military occu- pation of Castine, the enemy acquired that firm possession which enabled him to exercise the fullest rights of sovereignty over that place. The sovereignty of the United States over the territory was, of course, suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conquerors. By the surrender the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose. From the nature of the case, no other laws could be obligatory upon them, for, where there is no protection or allegiance or sovereignty, there can be no claim to obedience." 4 Wheat. 254. In the great case of The Exchange, (1812) 7 Cranch, 116, the grounds upon which foreign ministers are, and other aliens are not. 724 CASES ON CONSTITUTIONAL LAW. exempt from the jurisdiction of this country, were set forth by Chief Justice Marshall in a clear and powerful train of reasoning, of which it will be sufEcient for our present purpose, to give little more than the outlines. The opinion 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 this court until some years afterwards in Cherokee Nation v. Georgia (1831) 5 Pet. 1; nor upon a case of suspension of the sovereignty of the United States over part of their territory by reason of a hostile occupation, such as was also afterwards presented in United States V. Eice, above cited. But in all other respects it covered the whole question of what persons within the territory of the United States are subject to the jurisdiction thereof. . . . [Here follow citations from The Exchange.] In short, the judgment in the case of The Exchange declared, as incontrovertible principles, that the jurisdiction of every nation within its own territory is exclusive and absolute, and is susceptible of no limitation not imposed by the nation itself ; that all ex- ceptions to its full and absolute territorial jurisdiction must be traced up to its own consent, expressed or implied; that upon its consent to cede, or to waive the exercise of, a part of its territorial 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 individuals of another nation enter the territory and mingle indiscriminately with its inhabitants, for purposes of business or pleasure, can never be con- strued to grant to them an exemption from the jurisdiction of the country in which they are found. See also Carlisle v. United States, (1872) 16 Wall. 147, 155; Eadlich v. Hutchins, (1877) 95 U. S. 210; Wildenhus's Case, (1887) 130 U. S. 1; Chae Chan Ping V. United States, (1889) 130 U. S. 581, 603, 604. From the first organization of the National Government under the Constitution, the naturalization acts of the United States in providing for the admission of aliens to citizenship by judicial proceedings, uniformly required every applicant to have resided for a certain time "within the limits and under the juris- diction of the United States ;" and thus applied the words "under the jurisdiction of the United States" to aliens residing here before they had taken an oath to support the Constitution of the United UNITED STATES v. WONG KIM ARK. 735 States, or had renounced allegiance to a foreign government. Acts of March 26, 1790, c. 3; January 29, 1795, c. 20, § 1; June 18, 1798, c. 54, §§ 1, 6; 1 Stat. 103, 414, 566, 568; April 14, 1802, c. 28, § 1; 2 Stat. 153; March 22, 1816, e. 32, § 1; 3 Stat. 258; May 24, 1828, c. 116, § 2; 4 Stat. 310; Rev. Stat. § 2165. And, from 1795, the provisions of those acts, which granted citizenship to foreign-born children of American parents, described such children as "born out of the jurisdiction and limits of the United States." Acts of January 29, 1795, e. 20 § 3 ; 1 Stat. 415 ; April 14, 1802, c. 28, § 4; 2 Stat. 155; February 10, 1855, c. 71; 10 Stat. 604; Rev. Stat. §§ 1993, 2172. Thus Congress, when dealing with the question of citizenship in that aspect, treated aliens residing in this country as "under the jurisdiction of the United States," and American parents residing abroad as "out of the jurisdiction of the United States." The words "in the United States, and subject to the jurisdiction thereof," in the first sentence of the Fourteenth Amendment of the Constitution, must be presumed to have been understood and in- tended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known ease of The Exchange; and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words, "out of the limits and juris- diction of the United States," as habitually used in the naturaliza- tion acts. This presumption is confirmed by the use of the word "jurisdiction" in the last clause of the same section of the Fourteenth Amendment, which forbids any State to "deny to any person within its jurisdiction the equal protection of the laws." It is impossible to construe the words "subject to the jurisdiction thereof," in the opening sentence, as less comprehen- sive than the words "within its jurisdiction," in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States." These considerations confirm the view, already expressed in this opinion, that the opening sentence of the Fourteenth Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship. 726 CASES ON CONSTITUTIONAL LAW. By the CiTil Eights Act of 1866, "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed," were declared to be citizens of the United States. In the light of the law as previously established, and of the history of the times, it can hardly be doubted that the words of that act, "^not subject to any foreign power," were not intended to exclude any children born in this country from the citizenship which there- tofore had been their birthright; or, for instance, for the first time in our history, to deny the right of citizenship to native-born children of foreign white parents not in the diplomatic service of their own country, nor in hostile occupation of part of our territory. But any possible doubt in this resrard was removed when the nega- tive words of the Civil Eights Act, "not subject to any foreign power," gave way, in the Fourteenth Amendment of the Constitu- tion, to the aifirmative words, "subject to the jurisdiction of the United States." This sentence of the Fourteenth Amendment is declaratory of existing rights, and affirmative of existing law, as to each of the qualifications therein expressed — '"bom in the United States," "naturalized in the United States," and "subject to the jurisdiction thereof" — in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents ; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization. The effect of the enactments conferring citizenship on foreign- born children of American parents has been defined, and the fun- damental rule of citizenship by birth within the dominion of the United States, notwithstanding alienage of parents, has been affirmed, in well considered opinions of the executive departments of the Grovernment, since the adoption of the Fourteenth Amend- ment of the Constitution. In 1869, Attorney General Hoar gave to Mr. Fish, the Secretary of State, an opinion that children born and domiciled abroad, whose fathers were native-born citizens of the United States, and had at some time resided therein, were, under the statute of Feb- ruary 10, 1855, c. 71, citizens of the United States, and "entitled UNITED STATES T. WONG KIM AHK. 737 to all the privileges of citizenship which it is ia the power of the United States Government to confer. Within the sovereignty and jurisdiction of this nation, they are undoubtedly entitled to all the privileges of citizens. But," the Attorney General added, "while the United States may, by law, fix or declare the conditions constituting citizens of the country within its own territorial juris- diction, and may confer the rights of American citizens every- where upon persons who are not rightfully subject to the authority of any foreign country or government, it is clear that the United States cannot, by undertaking to confer the rights of citizenship upon the subjects of a foreign nation, who have not come within our territory, interfere with the just rights of such nation to the government and control of its own subjects. If, therefore, by the laws of the country of their birth, children of American citizens, bom in that country are subjects of its government, I do not think that it is competent to the United States, by any legislation, to interfere with that relation, or, by undertaking to extend to them the rights of citizens of this country, to interfere with the allegiance which they may owe to the country of their birth while they continue within its territory, or to change the relation to other foreign nations which, by reason of their place of birth, may at any time exist. The rule of the common law I understand to be, that a person T)om in a strange country, under the obedience of a strange prince or country, is an alien' (Co. Lit. 138&,) and that every person owes allegiance to the country of his birth." 13 Opin- ions of Attorneys General, 89-91. In 1871, Mr. Pish, writing to Mr. Marsh, the American Min- ister to Italy, said: "The Fourteenth Amendment to the Consti- tution declares that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.' This is simply an affirmance of the common law of England and of this country, so far as it asserts the status of citi- zenship to be fixed by the place of nativity, irrespective of parent- age. The qualification, 'and subject to the jurisdiction thereof,' was probably intended to exclude the children of foreign ministers, and of other persons who may be within our territory with rights of extra territoriality." 2 Whart. Int. Dig. p. 394. In August, 1873, President Grant, in the exercise of the author- ity expressly conferred upon the President by art. 2, sect. 2, of the 728 CASES ON CONSTITUTIONAL LAW. Constitution, to "require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject re- lating to the duties of their respective offices," required the opinions of the members of his cabinet upon several questions of allegiance, naturalization and expatriation. Mr. Fish, in his opin- ion, which is entitled to much weight, as well from the circum- stances under which it was rendered, as from its masterly treat- ment of the subject, said: "Every independent State has as one of the incidents of its sovereignty the right of municipal legislation and jurisdiction over all persons within its territory, and may therefore change their nationality by naturalization, and this, without regard to the mu- nicipal laws of the country whose subjects are so naturalized, as long as they remain, or exercise the rights conferred by naturaliza- tion, within the territory and jurisdiction of the State which grants it. "It may also endow with the rights and privileges of its citizen- ship persons residing in other countries, so as to entitle them to all rights of property and of succession within its limits, and also with political privileges and civil rights to be enjoyed or exercised with- in the territory and jurisdiction of the State thus conferring its citizenship. "But no sovereignty can extend its jurisdiction beyond its own territorial limits so as to relieve those bom under and subject to another jurisdiction, from their obligations or duties thereto; nor can the municipal law of one State interfere with the duties or ob- ligations which its citizens incur, while voluntarily resident in such foreign State and without the jurisdiction of their own coun- try. "It is evident from the proviso in the act of 10th February, 1855j viz., 'that the rights of citizenship shall not descend to per- sons whose fathers never resided in the United States,' that the law-making power not only had in view this limit to the efficiency of its own municipal enactments in foreign jurisdiction; but that it has conferred only a qualified citizenship upon the children of American fathers born without the jurisdiction of the United States, and has denied to them, what pertains to other American citizens, the right of transmitting citizenship to their children, unless they shall have made themselves residents of the United States, or, in the language of the Fourteenth Amendment of the UNITED STATES v. WONG KIM AKK. 729 Constitution, have made themselves 'subject to the jurisdiction thereof.' "The child born of alien parents in the United States is held to be a citizen thereof and to be subject to duties with regard to this country which do not attach to the father. "The same principle on which such children are held by us to be citizens of the United States, and to be subject to duties to this country, applies to the children of American fathers born without the jurisdiction of the United States, and entitles the country within whose jurisdiction they are bom to claim them as citizens and to subject them to duties to it. "Such children are bom to a double character; the citizenship of the father is that of the child, so far as the laws of the country of which the father is a citizen are concerned, and within the ju- risdiction of that country; but the child, from the circumstances of his birth, may acquire rights and owes another fealty besides that which attaches to the father." Opinions of the Executive De- partments on Expatriation, Naturalization and Allegiance (1873), 17, 18 ; U. S. Foreign Relations, 1873-74, pp. 1191, 1193. In 1886, upon the application of a son born in France of an American citizen, and residing in France, for a passport, Mr. Bay- ard, the Secretary of State, as appears by letters to the Secretary of Legation from him in Paris, and from the latter to the appli- cant, quoted and adopted the conclusions of Attorney General Hoar in his opinion above cited. U. S. Foreign Eelations, 1886, p. 303 ; 2 Calvo, Droit International, § 546. These opinions go to show that, since the adoption of the Four- teenth Amendment, the executive branch of the Government, the one charged with the duty of protecting American citizens abroad against unjust treatment by other nations, has taken the same view of the act of Congress of 1855, declaring children born abroad of American citizens to be themselves citizens, which, as mentioned in a former part of this opinion, the British Foreign Office has taken of similar acts of Parliament— holding that such statutes cannot, consistently with our own established rule of citizenship by birth in this country, operate extra-territorially so far as to relieve any person bom and residing in a foreign country, and subject to its government, from his allegiance to that country. In a very recent case the Supreme Court of New Jersey held that a person, born in this country of Scotch parents who were 730 CASES ON CONSTITUTIONAL LAW. domiciled but had not been naturalized here, was "subject to the jurisdiction of the United States," within the meaning of the Fourteenth Amendment, and was "not subject to any foreign power," within the meaning of the Civil Eights Act of 1866 ; and, in an opinion delivered by Justice Van Syckel, with the concur- rence of Chief Justice Beasley, said: "The object of the Four- teenth Amendment, as is well known, was to confer upon the col- ored race the right of citizenship. It, however, gave to the col- ored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized, or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races ; and unless the gen- eral rule, that when the parents are domiciled here birth estab- lishes the right to citizenship, is accepted, the Fourteenth Amend- ment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the .language, 'all persons born in the United States, and subject to the jurisdic- tion thereof,' was intended to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race." Benny v. O'Brien (1895), 39 Vroom (58 N. J. Law), 36, 39, 40. The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment afBrms the an- cient and fundamental rule of citizenship by birth within the ter- ritory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the excep- tions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or bom on foreign public ships, or of enemies within and during hostile occupation of part of our territory, and with the single additional exception of chil- dren of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in mani- fest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domi- ciled within the United States. Every citizen or subject of an- other country, while domiciled here, is withia the allegiance and UNITED STATES v. WONG KIM ARK. 731 protection, and consequently subject to the jurisdiction of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke, in Calvin's Case, 7 Eep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural- bom subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-bom child of a citizen, and by operation of the same prin- ciple." It can hardly be denied that an alien is completely sub- ject to the political jurisdiction of the country in which he resides — seeing that, as said by Mr. Webster, when Secretary of State, ■in his Report to the president on Thrasher's Case in 1851, and since repeated by this court, "independently of a residence with intention to continue such residence; independently of any domi- ciliation; independently of the taking of any oath of allegiance or of renouncing any former allegiance, it is well known that, by the public law, an alien, or a stranger bom, for so long a time as he continues within the dominions of a foreign government, owes obedience to the laws of that government, and may be pun- ished for treason, or other crimes, as a native-born subject might be, unless his case is varied by some treaty stipulations." Ex. Doc. H. R. No. 10, 1st sess. 32d Congress, p. 4; 6 Webster's Works, 526; United States v. Carlisle, 16 Wall, 147, 155; Calvin's Case, 7 Rep. 6a; EUesmere on Postnati, 63; 1 Hale P. C, 63; 4 Bl. Com. 74, 92. To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, bom in the United States, of citizens or subjects of other countries, would be to deny citizen- ship to thousands of persons of English, Scotch, Irish, German or other European parentage, who have always been considered and treated as citizens of the United States. VI. Whatever considerations, in the absence of a controlling provision of the Constitution, might influence the legislative or the executive branch of the Government to decline to admit persons of the Chinese race to the status of citizens of the United States, there are none that can restrain or permit the judiciary to refuse to give full effect to the peremptory and explicit language of the Fourteenth Amendment, which declares and ordains that "All per- 733 CASES ON CONSTITUTIONAL LAW. sons bom or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Chinese persons, born out of the United States, remaining sub- jects of the Emperor of China, and not having become citizens of the United States, are entitled to the protection of and owe alle- giance to the United States, so long as they are permitted by the United States to reside here; and are "subject to the jurisdiction thereof," in the same sense as all other aliens residing in the United States. Tick Wo v. Hopkins (1886), 118 U. S. 356 Law Ow Bew v. United States (1892), 144 U. S. 47, 61, 62 Fong Yue Ting v. United States (1893), 149 U. S. 698, 724 Lem Moon Sing v. United States (1895), 158 U. S. 538, 547 Wong Wing v. United States (1896), 163 U. S. 228, 238. In Yick Wo v. Hopkins the decision was that an ordinance of the city of San Francisco, regulating a certain business, and which, as executed by the Board of Supervisors, made an arbitrary discrimination between natives of China, still subjects of the Em- peror of China, but domiciled in the United States, and all other persons, was contrary to the Fourteenth Amendment of the Con- stitution. Mr. Justice Matthews, in delivering the opinion of the court, said: "The rights of the petitioners as affected by the pro- ceedings of which they complain, are not less, because they are aliens and subjects of the Emperor of China." "The Fourteenth Amendment to the Constitution is not confined to the protection of citizens. It says, 'Nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.' These provisions are universal in their application, to all persons within the territorial jurisdiction, without regard to any differences of race, or color, or of nationality; and the equal pro- tection of the laws is a pledge of the protection of equal laws. It is accordingly enacted, by § 1977 of the Eevised Statutes, that 'all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of per- sons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and exactions of every kind, and to no other.' The questions we have to consider and decide in these cases, therefore, are to be treated UNITED STATES v. WONG KIM ARK. YSS as involving the rights of every citizen of the United States, equally with those of the strangers and aliens who now invoke the jurisdiction of this court." 118 U. S. 368, 369. . . . The acts of Congress, known as the Chinese Exclusion Acts, the earliest of which was passed some fourteen years after the adoption of the Constitutional Amendment, cannot control its meaning, or impair its effect, but must be construed and executed in subordination to its provisions. And the right of the United States, as exercised by and under those acts, to exclude or to expel from the country persons of the Chinese race, bom in China, and continuing to be subjects of the Emperor of China, though having acquired a commercial domicile in the United Stiates, has been upheld by this court, for reasons applicable to all aliens alike, and inapplicable to citizens, of whatever race or color. Chae Chan Ping V. United States, 130 U. S. 581 ; Nishimura Ekiu v. United States, 143 U. S. 651; Eong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing v. United States, 158 U. S. 538; Wong Wing V. United States, 163 U. S. 228 [Here fol- lows a consideration of these cases.] The Fourteenth Amendment of the Constitution, in the declara- tion 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," contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturaliza- tion under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circum- stances defined in the Constitution. Every person bom in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person bom out of the jurisdiction of the United States can only become a citizen by being naturalized, 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 enactments conferring citizenship upon foreign-bom children of citizens, or by enabling foreigners indi- vidually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts. The power of naturalization, vested in Congress by the Consti- tution, is a power to confer citizenship, not a power to take it 734 CASES ON CONSTITUTIONAL LAW. away. "A naturalized citizen," said Chief Justice Marshall, 'Tdb- comes a member of the society, possessing all the rights of a na- tive citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Con- gress to enlarge or abridge those rights. The simple power of the National Legislature is to prescribe a uniform rule of natur- alization, and the exercise of this power exhausts it, so far as re- spects the individual. The Constitution then takes him up, and, among other rights, extends to him the capacity of suing in the courts of the United States, precisely under the same circumstances under which a native might sue." Osborn v. United States Bank, 9 Wheat. 738, 837. Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birth-right, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to re- strict the effect of birth, declared by the Constitution to consti- tute a sufficient and complete right to citizenship. No one doubts that the Amendment, as soon as it was promul- gated, applied to persons of African descent born in the United States, wherever the birthplace of their parents might have been; and yet, for two years afterwards, there was no statute author- izing persons of that race to be naturalized. If the omission or the refusal of Congress to permit certain classes of persons to be made citizens by naturalization could be allowed the effect of cor- respondingly restricting the classes of persons who should be- come citizens by birth, it would be in the power of Congress, at any time, by striking negroes out of the naturalization laws, and limiting those laws, as they were formerly limited, to white per- sons, to defeat the main purpose of the Constitutional Amend- ment. The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citi- zens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, "All persons bom in the United States, and UNITED STATES V. WONG KIM ARK. 735 subject to the jurisdiction thereof, are citizens of the United States." .... The evident intention, and the necessary effect, of the submis- sion of this case to the decision of the court upon the facts agreed by the parties, were to present for examination the single ques- tion, stated at the beginning of this opinion, namely, whether a child bom in the United States, of parents of Chinese descent, 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 carryiag on business, and are not employed in any diplomatic or official capacity under the Emperor of China, be- comes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative. Order affirmed. [Mr. Chief Justice Pullee, with whom concurred Mr. Jus- tice Haelan, delivered a dissenting opinion.] JURISDICTION OF THE FEDERAL COURTS. SOUTH DAKOTA v. NOETH CAROLIITA. 192 U. S. 286. Decided February 1, 1904. [In 1849 the State of North Carolina incorporated the North Carolina Railroad Company, with a capital of $3,000,000, divided into 30,000 shares of $100 each. Two-thirds of the stock in the company was subscribed for by the State, and in 1855 the State subscribed for the remaining third. In 1855 the Western North Carolina Railroad Company was incorporated by an act which also authorized a subscription to its stock by the State and the issue of bonds secured by the stock held by the State in the com- pany. In 1866 the issue of bonds to complete the Western North Carolina Railway was authorized with the proviso that such bonds should be secured by mortgages of equivalent amounts on the stock owned by the State in the North Carolina Railroad Com- pany. These bonds were issued in 1867 and fell due in 1897. In 1879 the State appointed commissioners to adjust and compromise the State debt, and all the railway bonds authorized by the act of 1866 had been compromised with the exception of about $250,- 000. Schafer Brothers, who, individually or as partners, owned a large part of these outstanding bonds, in 1901 presented ten of them to the State of South Dakota. Previously, on the suggestion that perhaps a donation of bonds of some of the Southern States would be made to the State, the legislature of South Dakota had directed the governor to accept gifts on behalf of the State, and the attorney-general was instructed to take such action as should be necessary to protect the interests of the State.] On November 18, 1901, the State of South Dakota, leave having been first obtained, filed in this court its biU of complaint, making defendants the State of North Carolina, Simon Rothschilds (al- leged to be one of the holders and owners of the bonds originally issued by the State and secured by a pledge of the stock in the 736 SOUTH DAKOTA v. NORTH CAROLINA. 737 North Carolina Railroad Company under the acts of 1849 and 1855), and Charles Salter (alleged to be one of the holders of the bonds issued under the act of 1855 and 1866, on account of the subscription to the Western North Carolina Railroad Com- pany), the two individuals being made defendants as representa- tives of the classes of bondholders to which they severally belong. In it the plaintiff, after setting forth the facts in reference to the several issues of bonds and its acquisition of title to ten, prayed that an account might be taken of all the bonds issued by virtue of these statutes; that North Carolina be required to pay the amount found due on the bonds held by the plaintiff, and that in default of payment North Carolina and all persons claiming un- der said State might be barred and foreclosed of all equity and right of redemption in and to the 30,000 shares of stock held by the State, and that these shares, or as many thereof as might be necessary to pay off and discharge the entire mortgage indebted- ness, be sold, and the proceeds, after payment of costs, be applied in satisfaction of the bonds and coupons secured by such mort- gages; and also for a receiver and an injunction. Defendant Rothschilds made no answer. On April 2, 1903, the State of North Carolina and the defendant Charles Salter filed separate answers. North Carolina in its answer denied both the jurisdiction of this court and the title of the plaintiff; averred that the bonds were not issued in conformity with the statute; admitted the ownership of 30,000 shares of stock; denied that tiie mortgages were properly executed or that they had the effect of conveyances or transfers, either in law or equity, of said stock, or conferred any lien by way of pledge or otherwise upon the same; denied that she ever had any compact or agreement what- ever other than that contained in the Constitution of the United States with South Dakota, or that South Dakota had ever in- formed North Carolina of any claim against her, or made any demand in respect to it, or any effort to settle or accommodate. Salter's answer was mainly an admission of the allegations of the bill, with a claim that all the stock should be sold in satisfaction of the mortgage bonds of which he was charged to be the repre- sentative. Testimony was taken under direction of the court, be- fore commissioners agreed upon by the parties. Me. Justice Brewer, after making the foregoing statement, de- livered the opinion of the court: 47 738 CASES ON CONSTITUTIONAL LAW. There can be no reasonable doubt of the validity of the bonds and mortgages in controversy. There is no challenge of the stat- utes by which they were authorized. . . . Neither can there be any question respecting the title of South Dakota to these bonds. They are not held by .the State as representative of indi- vidual owners, as in the case of New Hampshire v. Louisiana, 108 TJ. S. 76, for they were given outright and absolutely to the State. It is true that the gift may be considered a rare and unexpected one. Apparently the statute of South Dakota was passed in view of the expected gift, and probably the donor made the gift under a not unreasonable expectation that South Dakota would bring an action against North Carolina to enforce these bonds, and that such action might enure to his benefit as the owner of other like bonds. But the motive with which a gift is made, whether good or bad, does not affect its validity or the question of jurisdiction. This has been often ruled [The court here refers to Davis v. Flagg, 35 N, J. Eq. 491; Dering v. "Winchelsea, 1 Cox. Ch. 318; McMullen v. Ritchie, 64 Fed. Eep. 253, 361 ; Toler v. East Tennessee, V. & G. E. Co., 67 Fed. Rep. 168; McDonald v. Smalley, 1 Pet. 620; Smith v. Ker- nochen, 7 How. 198; Barney v. Baltimore City, 6 Wall. 380; Farmington v. Pillsbury, 114 TJ. S. 138; Crawford v. Neal, 144 TJ. S. 585 ; Cheever v. Wilson, 9 Wall. 108, 123 ; Briggs v. French, 3 Sumn. 251; Catlett v. Pacific Ins. Co., 1 Paine, 594; Cooper V. Galbraith, 3 Wash. 546; Johnson v. Monell, Woolw. 390.] The title of South Dakota is as perfect as though it had re- ceived these bonds directly from North Carolina. We have, there- fore, before us the case of a State with an unquestionable tjitle to bonds issued by another State, secured by a mortgage of railroad stock belonging to that State, coming into this court and invoking its jurisdiction to compel payment of those bonds and a subjection of the mortgaged property to the satisfaction of the debt. Has this court jurisdiction of such a controversy, and to what extent may it grant relief? Obviously, that jurisdiction is not affected by the fact that the donor of these bonds could not in- voke it. The payee of a foreign bill of exchange may not sue the drawer in the Federal court of a State of which both are citizens, but that does not oust the court of jurisdiction of an action by a subsequent holder if the latter be a citizen of another State. The question of jurisdiction is determined by the status of the present SOUTH DAKOTA V. NORTH CAROLINA. 739 parties, and not by that of prior holders of the thing in contro- versy. Obviously, too, the subject-matter is one of judicial cogni- zance. If anything can be considered as justifiable it is a claim for money due on a written promise to pay; and if it be justi- fiable, does it matter how the plaintiff acquires title, providing it be honestly acquired? It would seem strangely inconsistent to take jurisdiction of an action by South Dakota against North Carolina on a promise to pay made by the latter directly to the former, and refuse jurisdiction of an action on a like promise made by the latter to an individual, and by him sold or donated to the former. A preliminary question arises from the fact that representatives of the two classes of bonds are made defendants, and that a part of the relief asked is a sale of the 30,000 shares of stock of the North Carolina Eailroad Company, belonging to the State of North Carolina, in satisfaction and discharge of all the mortgages upon such stock. It is insisted that these individuals, owners of the bonds, although named as defendants, are in fact occupying an adverse position to that of the State, and that the effect of their presence as parties is a practical nullification of the Eleventh Amendment, in that it is giving to individuals relief by judgment against the State. Apparently, one expectation of the donor to South Dakota was that in some way the bonds retained by himself would be placed in judgment, and relief obtained against North Carolina in the suit commenced by South Dakota. But we think that these individuals are not necessary parties-defendant, and that no relief should be given to them or to the classes of bond- holders they represent. The statute under which the mortgage was executed provided that with each of the bonds a deed of mortgage for a like amount of stock should be executed by the State. There is, therefore, a separate mortgage of ten shares of stock on ea*h one oi these bonds, and that mortgage can be fully satisfied by a decree of foreclosure and sale of the ten shares of stock. No one would doubt that, if a certificate of stock was at- tached as a pledge to a note, the pledge could be satisfied by a sale of the stock without any determination of the rights of the pur- chaser SB between himself and other stockholders. And such was the manifest purpose of this legislation. It contemplated that each bondholder should receive a stock security which he could realize on without the delay and expense of a suit to which all 740 CA.SES ON CONSTITUTIONAL LAW. other stockholders and the corporation would be necessary parties. rThe purchaser at the sale to be authorized by this decree will be- come vested with the full title of the State to the number of shares of stock stated in the mortgage. He will occupy the same position in relation to the corporate property that other stockholders oe- cupy, and have whatever rights they have. It is not necessary for a full satisfaction of the mortgage on one of these bonds that any other mortgage upon another bond be also foreclosed, or that a decree be entered determining what rights the purchaser will have by virtue of the stock which he obtaias at the sale. So far, then, as these individual defendants are concerned, the suit will be dismissed, with costs against South Dakota. Coming now to the right of South Dakota to maintain this euit against North Carolina, we remark that it is a controversy (between two States ; that by § 2, art. III., of the Constitution, this court is given original jurisdiction of "controversies between two or more States." In Missouri v. Illinois and the Sanitary District of Chicago, 180 U. S. 208, Mr. Justice Shiras, speaking for the court, reviewed at length the history of the incorporation of this provision into the Federal Constitution, and the decisions rendered by this court in respect to such jurisdiction, closing with these words (p. 240) : "The cases cited show that such jurisdiction has been exercised in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a State. " The present case is one "directly affecting the property rights and interests of a State." Although a repetition of this review is unnecessary, two or three matters are worthy of notice. The original draft of the Constitu- tion reported to the convention gave to the Senate jurisdiction of all disputes and controversies %etween two or more States, re- specting jurisdiction or territory," and to the Supreme Court juris- diction of "controversies between two or more States, except such as shall regard territory or jurisdiction." A claim for money due being a controversy of a justiciable nature, and one of the most common of controversies, would seem to naturally fall within the scope of the jurisdiction thus intended to be conferred upon the Supreme Court. In the subsequent revision by the convention the power given to the Senate in respect to controversies between the SOUTH DAKOTA v. NORTH CAROLINA. 7411 States was stricken out, as well as the limitation upon the jurisdic- tion of this court, leaving to it, in the language now found in the Constitution, jurisdiction, without any limitatio^i, of "controversies between two or more States." The Constitution, as it origiaally stood, also gave to this court jurisdiction of controversies '^between a State and citizens of anoth- er State." Under that clause Chisholm v. Georgia, 2 Dall. 419, was decided, in which it was held that a citizen of one State might maintain in this court an action of assumpsit against another State. In consequence of that decision the Eleventh Amendment was adopted, which provides that "the judicial power of the TJnited States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citi- zens of another State, or by citizens or subjects of any foreign State." It will be perceived that this amendment only granted to a State immunity from suit by an individual, and did not afEect the jurisdiction over controversies between two or more States. In respect to this it was said by Chief Justice Marshall in Cohen v. Virginia, 6 Wheat. 264, 406: "It is a part of our history that, at the adoption of the Constitu- tion, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the Federal courts formed a very serious objection to that instrument. Suits were instituted ; and the court maintained its jurisdiction. The alarm was general ; and, to quiet the apprehensions that were so extensively enter- tained, this amendment was proposed in Congress, and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation may be inferred from the terms of the amendment. It does not compre- hend controversies between two or more States, or between a State and a foreign State. The jurisdiction of the court still extends to these eases; and in these a State may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adop- tion of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sis- ter States would be creditors to any considerable amount, and 742 CASES ON CONSTITUTIONAL LAW. there was reason to xetaiu the jurisdiction of the court in those cases, because it might he essential to the preservation of peace. The amendment, therefore, extended to suits commenced or pros- ecuted by individuals, but not to those brought by States." In the same case, after referring to the two classes of cases, ju- risdiction of which was vested in the courts of the Union, he said (p. 378) : "In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended 'controversies between two or more States, between a State and citizens of anoth- er State,' 'and between a State and foreign States, citizens or sub- jects.' If these be the parties, it is entirely unimportant what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union." In Ehode Island v. Massachusetts, 13 Pet. 657, this court sus- tained its jurisdiction of s. suit in equity brought by one State against another to determine a dispute as to boundary, and, in the course of the opinion, by Mr. Justice Baldwin, said in respect to the immunity of a sovereign from suit by an individual (p. 730) : "Those States, in their highest sovereign capacity, in the con- vention of the people thereof, . . . adopted the Constitution, by which they respectively made to the United States a. grant of judicial power over controversies between two or more States. By the Constitution, it was ordained that this judicial power, in cases where a State was a party, should be exercised by this court as one of original jurisdiction. The States waived their exemption from judicial power (6 Wheat. 378, 380) as sovereigns by original and inherent right, by their own grant of its exercise over them- selves in such cases, but which they would not grant to any inferior tribunal. By this grant, this court has acquired jurisdiction over the parties in this cause, by their own consent and delegated au- thority; as their agent for executing the judicial power of the United States in the cases specified." And, again, in reference to the extent of the jurisdiction of this court (p. 721) : "That it is a controversy between two States cannot be denied ; and, though the Constitution does not, in terms, extend the judi- cial power to all controversies between two or more States, yet it, in terms, excludes none, whatever may be their nature or subject." In United States v. North Carolina, 136 U. S. 211, we took SOUTH DAKOTA v. NORTH CAROLINA. 743 jurisdiction of an action brought by the United States against North Carolina to recover interest on bonds, and decided the case upon its merits. It is true there was nothing in the opinion in reference to the matter of jurisdiction, but as said in United States V. Texas, 143 U. S.-621, 642: "The cases in this court show that the framers of the Constitu- tion did provide, by that instrument, for the judicial determina- tion of all cases in law and equity between two or more States, in- cluding those involving questions of boundary. Did they omit to provide for the judicial determination of controversies arising be- tween the United States and one or more of the States of the Union? This question is in effect answered by United States v. North Cajolina, 136 U. S. 311. That was an action of debt brought against the State of North Carolina upon certain bonds issued by that State. The State appeared, the case was deter- mined here upon its merits, and judgment was rendered for the State. It is true that no question was made as to the jurisdiction of this court, and nothing was therefore said in the opinion upon that subject. But it did not escape the attention of the court, and the judgment would not have been rendered except upon the theory that this court has original jurisdiction of a suit by the United States against a State." See also United States v. Michigan, 190 U. S; 379, decided at the last term, in which a bill in equity for an accounting and a recovery of money was sustained. Mr. Justice Peckham, deliver- ing the unanimous opinion of the court, said (pp. 396, 406) : "By its bin the United States invokes the original jurisdiction of this court for the purpose of determining a controversy existing between it and the State of Michigan. This court has jurisdiction of such a controversy, although it is not literally between two States, the United States being «r party on the one side and a State on the other. This was decided in United States v. Texas, 143 U. S. 621, 642. . . . There must be judgment overruling the demurrer, but as the defendant may desire to set up facts which it might claim would be a defense to the complainant's bill, we grant leave to the defendant to answer up to the first day of tha next term of this court. In case it refuses to plead furthes^ the judgment will be in favor of the United States for an account- ing for the payment of the sum found due thereon." We are not unmindful of the fact that in Hans v. Louisiana, 134 744 CASES ON CONSTITUTIONAL! LAW. U. S. 1, Mr. Justice Bradley, delivering the opinion of the court, expressed his concurrence in the views announced by Mr. Justice Iredell, in the dissenting opinion in Chisholm v. Georgia, but such expression cannot be considered as a judgment of the court, for the point decided was that, construing the Eleventh Amendment ac- cording to its spirit rather than by its letter, a State was relieved from liability to suit at the instance of an individual, whether one of its own citizens or a citizen of a foreign State. Without notic- ing in detail the other eases referred to by Mr. Justice Shiras in Missouri v. Illinois et ah, 180 U. S. 208, it is enough to say that the clear import of the decisions of this court from the beginning to the present time is in favor of its jurisdiction over an action brought by one State against another, to enforce a property right. Chisholm v. Georgia was an action of assumpsit; United States V. North Carolina, an action of debt ; United States v. Michigan, a suit for an accounting; and that which was sought in each was a money judgment against the defendant State. But we are confronted with the contention that there is no power in this court to enforce such a judgment, and such lack of power is conclusive evidence that, notwithstanding the general lan- guage of the Constitution, there is an implied exception of ac- tions brought to recover money. The public property held by any municipality, city, county, or State is exempt from "seizure upon execution, because it is held by such corporation, not as a part of its private assets, but as a trustee for public purposes. (Meri- wether V. Garrett, 103 U. S. 473, 513.) As a rule, ncsuoh munici- pality has any private property subject to be taken upon execution. A levy of taxes is not within the scope of the judicial power except as it commands an inferior municipality to execute the power granted by the legislature. In Rees v. Watertown, 19 Wall. 107, 116, 117, we said: 'TVe are of the opinion that this court has not the power to direct a tax to be levied for the payment of these judgments. This power to impose burdens and raise money is the highest attribute of sovereignty, and* is exercised, first, to raise money for public purposes only; and;, second, by the power of legislative authority only. It is a power that has not been extended to the judiciary. Especially is it beyond the power of the Federal judiciary to as- sume the place of a State in the exercise of this authority, at once 60 delicate and so important." SOUTH DAKOTA t. NORTH CAROLINA. 745 See also Heine v. Levee Comrs., 19 Wall. 655, 661 ; Meriwether v. Garrett, 102 U. S. 472. In this connection reference may be made to United States ex rel. Goodrich v. Guthrie, 17 How. 284, in which an application was made for a mandamus against the Secretary of the Treasury to compel the payment of an official salary, and in which we said (p. 303) : "The only legitimate inquiry for our determination wpon the case before us is this : Whether under the organization of the Fede- ral government or by any known principle of law, there can be as- serted a power in the Circuit Court of the United States for the District of Columbia^ or in this court, to command the withdrawal of a sum or sums of money from the Treasury of the United States, to be applied in satisfaction of disputed or controverted claims against the United States? This is the question, the very question presented for our determination; and its simple state- ment would seem to carry with it the most startling considerations, — ^nay, its unavoidable negation, unless this should be prevented by some positive and controlling command; for it would occur, a priori, to every mind, that a treasury, not fenced round or shielded by fixed and established " modes and rules of administration, but which could be subjected to any number or description of demands, asserted and sustained through the undefined and undefinable dis- cretion of the courts, would constitute a feeble and inadequate provision for the great and inevitable necessities of the nation. The government under such a regime, or rather, under such an ab- sence of all rule, would, if practicable at all, be administered, not by the great departments ordained by the Constitution and laws, and guided by the modes therein prescribed, but by the uncertain and perhaps contradictory action of the courts, in the enforcement of their views of private interests." Further, in this connection may be noticed Gordon v. United States, 117 U. S. 697, in which this court declined to take jurisdic- tion of an appeal from the Court of Claims, under the statute as it stood at the time of the decision, on the ground that there was not vested by the act of Congress power to enforce its judgment. We quote the following from the opinion, which was the last pre- pared by Chief Justice Taney (pp. 702, 704) : "The award of execution is a part, and an essential part, of every judgment passed by a court exercising judicial power. It is 740 CASES ON CONSTITUTIONAL LAW. no judgment in the legal sense of the term, without it. Without such an award the judgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. . . . Indeed, no principle of constitutional law has been more firmly established or constantly adhered to than the one above stated, — ^that is, that this court has no jurisdiction in any case where it cannot render judgment in the legal sense of the term ; and when it depends upon the legislature to carry its opinion into effect or not at the pleas- ure of Congress." See also In re Sanborn, 148 U. S. 222, and La Abra Silver Min. Co. v. United States, 175 TJ. S. 433, 456. We have, then, on the one hand the general language of the Constitution, vesting jurisdiction in this court over "controversies between two or more States," the history of that jurisidictional clause in the convention, the cases of Chisholm v. Georgia, United States V. North Carolina, and United States v. Michigan (in which this court sustained jurisdiction over actions to recover money from a State), the manifest trend of other decisions, the necessity of some way of ending controversies between States, and the fact that this claim for the payment of money is one justicia- ble in its nature; on the other, certain expression of individual opinions of justices of this court, the difficulty of enforcing a judgment for money against a State by reason of its ordinary lack of private property subject to seizure upon execution, and the ab- solute inability of a court to compel a levy of taxes by the legisla- ture. Notwithstanding the embarrassments which surround the question, it is directly presented, and may have to be determined before the case is finally concluded, but for the present it is suffi- cient to state the question with its difficulties. There is in this case a mortgage of property, and the sale of that property under a foreclosure may satisfy the plaintiff's claim. If that should be the result, there would be no necessity for a personal judgment against the State. That the State is a necessary party to the foreclosure of the mortgage was settled by Christian v. At- lantic & N. C. E. Co., 133 U. S. 233. Equity is satisfied by a de- cree for a foreclosure and sale of the mortgaged property, leaving the question of a judgment over for any deficiency to be determined when, if ever, it arises. And surely if, as we have often held, this court has jurisdiction of an action by one State against another to recover a tract of land, there would seem to be no doubt of the jurisdiction of one to enforce the delivery of personal property. SOUTH DAKOTA v. NORTH CAROLINA. 747 A decree will, therefore, be entered, which, after finding the amount due on the bonds and coupons in suit to be twenty-seven thousand four hundred dollars ($27,400), (no interest being re- coverable. United States v. North Carolina, 136 U. S. 211), and that the same are secured by 100 shares of the stock of the North Carolina Railroad Company, belonging to the State of North Carolina, shall order that the said State of North Carolina pay said amount with costs of suit to the State of South Dakota on or before the 1st Monday of January, 1905, and that in default of such payment an order of sale be issued to the Marshal of this court, directing him to sell at public auction all the interest of the State of North Carolina in and to one hundred shares of the capi- tal stock of the North Carolina Railroad Company, such sale to be made at the east front door of the Capitol Building in this city, public notice to be given of such sale by advertisements once a week for six weeks in some daily paper published in the city of Raleigh, North Carolina, and also in some daily paper published in the city of Washington. And either of the parties to this suit may apply to the court upon the foot of this decree, as occasion may require. [Me. Justice White, with whom concurred Me. Chief Justice FuLLEE, Me. Justice McKjenna, and Me. Justice Dat delivered a dissenting opinion.] XVII. THE POWER OF CONGRESS OVER THE TERRITORIES. DE LIMA y. BIDWELL. 182 U. S. 1. Decided May 27, 1901. This was an action originally instituted in the Supreme Court of the State of New York by the firm of D. A. De Lima & Co. against the collector of the port of New York, to recover back duties alleged to have heen illegally exacted and paid under protest, upon certain importations of sugar from San Juan in the island of Porto Rico, during the autumn of 1899, and subsequent to the cession of the island to the United States. Upon the petition of the collector, and pursuant to R. S. sec. 643, the case was removed by certiorari to the Circuit Court of the United States, in which the defendant appeared and demurred to the complaint upon the ground that it did not state a cause of action, and also that the court had no jurisdiction of the case. The demurrer was sustained upon both grounds, and the action dis- missed. Hence this writ of error. In this and the following cases, which may be collectively des- ignated as the "Insular Tariff Cases," the dates here given become material : In July, 1898, Porto Rico was invaded by the military forces of the United States under General Miles. On August 12, 1898, during the progress of the campaign, a protocol was entered into between the Secretary of State and the French Ambassador on the part of Spain, providing for a suspen- sion of hostilities, the cession of the island and the conclusion of a treaty of peace. (30 Stat. 1743.) On October 18, Porto Rico was evacuated by the Spanish forces. On December 10, 1898, such treaty was signed at Paris, (under which Spain ceded to the United States the island of Porto Rico,) was ratified by the President and Senate, February 6, 1899, and by the Queen Regent of Spain, March 19, 1899. (30 Stat. 1754.) 748 DE LIMA V. BIDWBLL, 749 On March 2, 1899, an act was passed making an appropriation to, carry out the obligations of the treaty. On April 11, 1899, the ratifications were exchanged, and the treaty proclaimed at Washington. On April 12, 1900, an act was passed, commonly called the Toraker act, to provide temporary revenues and a civil government for Porto Eico, which took effect May 1, 1900 Mr. Justice Beovtn delivered the opinion of the court. This case raises the single question whether territory acquired by the United States by cession from a foreign power remains a "foreign country" within the meaning of the tariff laws. . . . 2. Whether these cargoes of sugar were subject to duty depends solely upon the question whether Porto Eico was a "foreign coun- try" at the time the sugars were shipped, since the tariff act of July 24, 1897, 30 Stat. 151, commonly known as the Dingley act, declares that "there shall be levied, collected and paid upon all articles imported from foreign countries" certain duties there- in specified. A foreign country was defined by Mr. Chief Justice Marshall and Mr. Justice Story to be exclusively one within the sovereignty of a foreign nation, and without the sovereignty of the United States. The Boat Eliza, 2 Gall. 4; Taber v. United States, 1 Story, 1 ; The Ship Adventure, 1 Brock, 235, 241. The status of Porto Eico was this: The island had been for some months under military occupation by the United States as a conquered country, when, by the second article of the treaty of peace between the United States and Spain, signed December 10, 1898, and ratified April 11, 1899, Spain ceded to the United States the island of Porto Eico, which has ever since remained in our possession, and has been governed and administered by us. If the case depended solely upon these facts, and the question were broad- ly presented whether a country which had been ceded to us, the cession accepted, possession delivered, and the island occupied and administered without interference by Spain or any other power, was a foreign country or domestic territory, it would seem that there could be as little hesitation in answering this question as there would be in determining the ownership of a house deeded in fee simple to a purchaser, who had accepted the deed, gone into possession, paid taxes and made improvements without let or hindrance from his vendor. But it is earnestly insisted by the / 750 CASES ON CONSTITUTIONAL LAW. Government that it never could have been the intention of Con- gress to admit Porto Eico into a customs union with the United States, and that, while the island may be to a certain extent do- mestic territory, it still remains a "foreign country" under the tariff laws, until Congress has embraced it within the general rev- enue system. We shall consider this subject more at length hereafter, but for the present call attention to certain cases in this court and certain regulations of the executive departments which are supposed to favor this contention. In United States v. Rice, 4 Wheat. 346, which was an action of debt brought by the United States upon, a bond for duties upon goods imported into Castine, in the district (now State) of Maine, during its temporary occupation by the British troops in the war of 1813, it was held the action would not lie, though Cas- tine was subsequently evacuated by the enemy and restored to the United States. The court said that, by the military occupation of Castine, the enemy acquired a possession which enabled him to exercise the fullest rights of sovereignty; that the sovereignty of the United States was suspended, and our laws could be no longer rightfully enforced there, or be obligatory upon the inhabitants^ that by the surrender the inhabitants passed under a temporary allegiance to the British government, and were only bound by the laws of that government, and that Castine was during this period to be deemed a foreign port; that goods brought there were subject to duties which the British government chose to impose, and were in no correct sense imported into the United States; and that the subsequent evacuation by the enemy did not change the charac- ter of the transaction, since the goods were not liable to American duties when imported. In that ease the character of the port, as foreign or domestic, was held to depend upon the question of ac- tual occupation, and the right of defendant determinable by the facts then existing, and further, that the subsequent reoccupation of the port by the United States was ineffectual to change the right of the defendant or to vest a new right in the United States. A case, somewhat to the converse of this, was that of Fleming v. Page, 9 How. 603, which was an action against the collector at Philadelphia, to recover back duties upon merchandise imported from Tampico, in Mexico, during a temporary military occupation of that place by the United States. It was held that, although DE LIMA V. BIDWELL. 751' Tampico was within the military oeeiapation of the United States, it had not ceased to be a foreign country, in the sense in which these words are used in the acts of Congress. In delivering the opinion of the court, Mr. Chief Justice Taney observed: "The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authoritv, and is not a part of the power conferred upon the President by the declaration of war. . . . While it was occupied by our troops, they were in an enemy's country, and not iu our own; the inhabitants were still foreigners and enemies, and owed to the United States nothing more than a submission and obedience, sometimes called temporary allegiance, which is due from a conquered enemy, when he surrenders to a force which he is unable to resist." This was clearly a sufficient reason for disposing of the case ad- versely to the importer, but the learned Chief Justice proceeded to put the case upon another ground, iiat "there was no act of Con- gress establishing a custom house at Tampico, nor authorizing the appointment of a collector; and consequently there was no officer of the United States authorized by law to grant the clearance and authenticate the coasting manifest of the cargo in the manner di- rected by law, where the voyage is from one port of the United States to another;" that the only collector was one appointed by the military commander, and that a coasting manifest granted by him could not be recognized in the United States as the document required by law, when the vessel is engaged in the coasting trade, nor exempt the cargo from the payment of duties. He states that this construction of the tariff laws had been uniformly given by the administrative department of the Government, and cited the case of Florida, after it had been ceded to the United States and the military forces had taken possession of Pensacola: "That is, that, although Florida had by cession actually become a part of the United States, and was in our possession, yet, under our reve- nue laws, its ports must be regarded as foreign until they were established as domestic, by acts of Congress. And it appears that this decision was sanctioned at the time by the Attorney General of the United States, the law officer of the Government. And, al- 753 CASES ON CONSTITUTIONAL LAW. though not so directly applicable to the case before lis, yet the de- cisions of the Treasury Department in relation to Amelia Island, and certain ports in Louisiana, after that province had been ceded to the United States, were both made upon the same grounds. And in the later ease, after a custom house had been established by law (2 Stat. 418,) at ISTew Orleans, the collector at that place was in- structed to regard as foreign ports Baton Eogue and other settle- ments still in the possession of Spain, whether on the Mississippi, Iberville, or the seacoast. The department, in no instance that we are aware of, since the establishment of the Government, has ever recognized a place in a newly acquired country as a domestic port, from which the coasting trade might be carried on, unless it had been previously made so by act of Congress." While we see no reason to doubt the conclusion of the court that the port of Tampico was still a foreign port, it is not perceived v/hy the fact that there was no act of Congress establishing a cus- tom house there or authorizing the appointment of a collector, should have prevented the collector appointed by the military com- mander from granting the usual documents required to be issued to a vessel engaged in the coasting trade. A collector, though ap- pointed by a military commander, may be presumed to have the ordinary power of a collector under an act of Congress, with au- thority to grant clearances to ports within the United States, though, of course, he would have no power to make a domestic port of what was in reality a foreign port. It is not intended to intimate that the cases of United States v. Eice and Fleming v. Page are not harmonioi^s. In fact, they are perfectly consistent with each other. In the first case it was merely held that duties could not be collected upon goods brought into a domestic port during a temporary occupation by the enemy, though the enemy subsequently evacuated it; in the latter case, that the temporary military occupation by the United States of a foreign port did not make it a domestic port, and that goods im- ported into the United States from that port were still subject to duty. It would have been obviously unjust in the Eice ease io impose a duty upon ffoods which might already have paid a duty to the British commander. It would have been equally unjust in the Fleming case to exempt the goods from duty by reason of our temporary occupation of the port without a formal cession of such port to the United States. DE LIMA V. BIDWELL. 753 The next case is that of Cross v. Harrison, 16 How. 164. This was an action of assumpsit to recover back moneys paid to Harrison while acting as collector at the port of San Francisco for tonnage and duties upon merchandise imported from foreign countries into California between February 2, 1848 — ^the date of the treaty of peace between the United States and Mexico — and November 13, 1849, when the collector appointed by the President (according to an act of Congress passed March 3, 1849) entered upon his duties. Plaintiffs insisted that, until such collector had been appointed, California was and continued to be after the date of the treaty a foreign territory, and hence that no duties were payable as upon an importation into the United States. The plaintiffs proceeded upon the theory, stated in the dictum in Flem- ing V. Page, that duties had never been held to accrue to the United States in her newly acquired territories until provision was made by act of Congress for their collection, and that the revenue laws had always been held to speak only as to the United States and its territories existing at the time when the several acts were passed. The collector had been appointed by the military gov- ernor of California, and duties were assessed, after the treaty, ac- cording to the United States tariff act of 1846. In holding that these duties were properly assessed, Mr. Justice Wayne cited with apparent approval a despatch written by Mr. Buchanan, then Sec- retary of State, and a circular letter issued by the Secretary of the Treasury, Mr. Eobert J. Walker, holding that from the necessities of the case the military government established in California did not cease to exist with the treaty of peace, but continued as a gov- ernment de facto until Congress should provide a territorial gov- ernment. "The great law of necessity," says Mr. Buchanan, "jus- tifies this conclusion. The consent of the people is irresistibly in- ferred from the fact that no civilized community could possibly desire to abrogate an existing government, when the alternative pre- sented would be to place themselves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity o:^ submitting to the dominion of the strongest." These letters will be alluded to hereafter in treating of the action of the executive departments. The court further held in this case that "after the ratification of the treaty, California became a part of the United States, or a ceded, conquered, territory;" that, "as there is nothing differently 48 754 CASES ON CONSTITUTIONAL LAW. ' Btipulated in the treaty with respect to commerce, it became in- stantly bound and privileged by the laws which Congress had passed to raise a revenue from duties on imports and tonnage;" that (p. 193) "the territory had been ceded as a conquest, and was to be preserved and governed as such until the sovereignty to which it had passed had legislated for it. That sovereignty was the United States, under the Constitution, by which power had been given to Congress to dispose of and make all needful rules and regulations respecting, the territory or other property belonging to the United States. . . . That the civil government of California, organ- ized as it was from a right of conquest, did not cease or become defunct in consequence of the signature of the treaty, or from its ratification, . . . and that until Congress legislated for it, the duty upon foreign goods imported into San Francisco were legally demanded and lawfully received by Mr. Harrison." To the objection that no collection districts had been established in California, and in apparent dissent from the views of the Chief Justice in Fleming v. Page, he added (p. 196) : "It was urged that our revenue laws covered only so much of the territory of the United States as had been divided into collection districts, and that out of them no authority had been given to prevent the land- ing of foreign goods or to charge duties upon them, though such .landing had been made within the territorial limits of the United ;StatGS. To this it may be successfully replied, that collection dis- rtricts and ports of entry are no more than designated localities •within and at which Congress had extended a liberty of commerce in the United States, and that so much of its territory as was not within any collection district must be considered as having been ^withheld from that liberty. It is very well understood to be a past tions of the present treaty, to admit Spanish ships and merchan- dise to the ports of the Philippine Islands on the same terms as ships and merchandise of the United States" — a privilege not extending to any other ports. It was a clear breaj^h of the uni- formity clause in question, and a manifest excess of authority on the part of the commissioners, if ports of the Philippine Islands be pbrts oi the United States. So, to'o, by Art. XIII, "Spanish scientific, literary and artistic works . . . shall be continued to be admitted free of duty in such territories, for the period of ten years, to be reckoned from the date of the exchange of the ratifications of this treaty." This is also a clear discrimination in favor of Spanish literary productions into particular ports. Notwithstanding these provisions for the incorporation of ter- ritories into the Union, Congress, not only in organizing the ter- ritory of Louisiana by. act of March 36, 1804, but all other territories carved out of this vast inheritance, has assumed that the Constitutibn did not extend to them of its own force, and has in each case made special provision, either that their legislatures shall pass no law inconsistent with the Constitution of the United States, or that the Constitution or laws of the United States shall be the supreme law of such territories. Finally, in Rev. Stat. sec. 1891, a general provision was enacted that "the Con- stitution and all laws of the United States which are not locally DOWNES V. BIDWELL. 775 inapplicable shall have the same force and effect within all the organized territories, and in every territory hereafter organized, as elsewhere within the United States." So, too, on March 6, 1820, 3 Stat. 545, c. 33, in an act authoriz- ing the people of Missouri to form a state government, after a heated debate. Congress declared that in the territory of Louisiana north of 36° 30' slavery should be forever prohibited. It is true that, for reasons which have become historical, this act was declared to be unconstitutional in Scott v. Sandford, 19 How. 393, but it is none the less a distinct annunciation by Congress of power over property in the territories which it obviously did not possess in the several States. The researches of counsel have collated a large number of other instances, in which Congress has in its enactments recognized the fact that provisions intended for the States did not embrace the territories, unless specially mentioned. These are found in the laws prohibiting, the slave trade with "the United States or ter- ritories thereof"; or equipping ships "in any port or place within the jurisdiction of the United States"; in the internal revenue laws, in the early ones of which no provision was made for the collection of taxes in the territory not included within the boun- daries of the existing States, and others of which extended them expressly to the territories, or "within the exterior boundaries of the United States" ; and in the acts extending the internal revenue laws to the Territories of Alaska and Oklahoma. It would pro- long this opinion unnecessarily to set forth the provisions of these acts in detail. It is sufficient to say that Congress has or has not applied the revenue laws to the territories, as the circumstances of each case seemed to require, and has specifically legislated for the territories whenever it was its intention to execute laws beyond the limits of the States. Indeed, whatever may have been the fluctuations of opinion in other bodies, (and even this court has not been exempt from them,) Congress has been consistent in recognizing the difference between the States and territories under the Constitution. The decisions of this court upon this subject have not been altogether harmonious. Some of them are based upon the theory that the Constitution does not apply to the territories without legislation. Other cases, arising from territories where such legis- lation has been had, contain language which would justify the 776 CASES ON CONSTITUTIONAL LAW. inference that such legislation was unnecessary, and that the Con- stitution took effect immediately upon the cession of the terri- tory to the United States. It may be remarked, upon the threshold of an analysis of these cases, that too much weight must not be given to general expressions found in several opinions that the power of Congress over territories is complete and su- preme, because these words may be interpreted as meaning only supreme under the Constitution; nor upon the other hand, to general statements that the Constitution covers the territories as well as the States, since in such cases it will be found that acts of Congress had already extended the Constitution to such ter- ritories, and that thereby it subordinated not only its own acts, but those of the territorial legislatures, to what had become the supreme law of the land. "It is a maxim not to be disregarded that general expressions, in every opinion, are to be taken in con- nection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it are considered in their relation to the ease decided, but their possible bearing on all other cases is seldom completely investigated." Cohens v. Virginia, 6 Wheat. 264, 399. [Here follows a consideration of the cases of Hepburn v. Ellzey, 2 Cranch 445; New Orleans v. Winter, 1 Wheaton 91; Scott V. Jones, 5 Howard 343 ; Miners' Bank v. Iowa, 12 Howard 1; Barney v. Baltimore City, 6 Wallace 280; Hooe v. Jamieson, 166 U. S. 395 ; Loughborough v. Blake, 5 Wheaton 317 ; Callan v. Wilson, 127 U. S. 540; Geofroy v. Eiggs, 133 U. S. 258; Amer- ican Insurance Co. v. Canter, 1 Peters 511; Benner v. Porter, 9 Howard 235; Clinton v Englebrecht, 13 Wallace 434; Good v. Martin, 95 U. S. 90; McAllister v. United States, 141 U. S. 174; McCuUoch V. Maryland, 4 Wheaton 316; United States v. Gratiot, 14 Peters 526; Mormon Church v. United States, 136 U. S. 1; National Bank v. County of Yankton, 101 U. S. 129 ; Murphy v. Kamsey, 114 U. S. 15; Webster v. Eeid, 11 Howard 437; Rey- nolds V. United States, 98 U. S. 145 ; Ross's Case, 140 U. S. 453 ; DOWNES v. BIDWELL. 777 American Publishing Co. v. Fisher, 166 U. S. 464; and Thompson V. Utah, 173 U. S. 343.] Eliminating, then, from the opinion of this court all expressions unnecessary to the disposition of the particular case, and gleaning therefrom the exact point decided in each, the following proposi- tions may be considered as established: 1. That the District of Columbia and the territories are not States, within the judicial clause of the Constitution giTing juris- diction in cases between citizens of different States; 2. That territories are not States, within the meaning of Ee- vised Statutes, sec. 709, permitting writs of error from this court in cases where the validity of a state statute is drawn in ques- tion; 3. That the District of Columbia and the territories are States, as that word is used in treaties with foreign powers, with respect to the ownership, disposition and inheritance of property; 4. That the territories are not within the clause of the Con- stitution providing for the creation of a Supreme Court and such inferior courts as Congress may see fit to establish; 6. That the Constitution does not apply to foreign countries or to trials therein conducted, and that Congress may lawfully pro- vide for such trials before consular tribunals, without the inter- vention of a grand or petit jury; 6. That where the Constitution has been once formally ex- tended by Congress to territories, neither Congress nor the ter- ritorial legislature can enact laws inconsistent therewith. The case of Dred Scott v. Sandford, 19 How. 393, remains to be considered. This was an action of trespass vi et armis brought m, the Circuit Court for the District of Missouri by Scott, alleging himself to be a citizen of Missouri, against Sandford, a citizen of New York. Defendant pleaded to the jurisdiction that Scott was not a citizen of the State of Missouri, because a negro of African descent, whose ancestors were imported as negi-o slaves. Plain- tiff demurred to this plea and the demurrer was sustained ; where- upon, by stipulation of counsel and with leave of the court, de- fendant pleaded in bar the general issue, and especially that the plaintiff was a slave and the lawful property of defendant, and, as such, he had a right to restrain him. The wife and children of the plaintiff were also involved in the suit. The facts in brief were, that plaintiff had been a slave belong- 778 CASES ON CONSTITUTIONAL LAW. ing to Dr. Emerson, a surgeon in the Army; that, in 1834, Emer- son took the plaintifE from the State of Missouri to Kock Island, Illinois, and subsequently to Port Snelling, Minnesota, (then known as Upper Louisiana,) and held him there until 1838. Scott married his wife there, of whom the children were subsequently born. In 1838 they returned to Missouri. Two questions were presented by the record: First, whether the Circuit Court had jurisdiction; and, second, if it had juris- diction, was the judgment erroneous or not? With regard to the first question, the court stated that it was its duty "to decide whether the facts stated in the plea are or are not sufficient to show that the plaintiff is not entitled to sue as a citizen in a court of the United States," and that the question was whether "a negro, whose ancestors were imported into this coimtry and sold as slaves, became a member of the political community formed and brought into existence by the Constitution of the United States, and as such entitled to all the rights and privileges and immunities guaranteed by that instrument to the citizen, one of which rights is the privilege of suing in a court of the United States." It was held that he was not, and was not in- cluded under the words "citizens" in the Constitution, and there- fore could claim "none of the rights and privileges which that instrument provides for and secures to citizens of the United States;" that it did not follow because he had all the rights and privileges of a citizen of a State, he must be a citizen of the United States ; that no State could by any law of its own "intro- duce a new member into the political community created by the Constitution;" that the African race was not intended to be in- cluded, and formed no part of the people who framed and adopted the Declaration of Independence. The question of the status of negroes in England and the several States was considered at great length by the Chief Justice, and the conclusion reached that Scott was not a citizen of Missouri, and that the Circuit Court had no jurisdiction of the case. This was sufficient to dispose of the case without reference to the question of slavery ; but, as the plaintiff insisted upon his title to freedom and citizenship by the fact that he and his wife, though born slaves, were taken by their owner and kept four years in Illinois and Minnesota, they thereby became free, and upon their return to Missouri became citizens of that State, the Chief Jus- DOWNES V. BIDWELL. 779 tice proceeded to discuss the question whether Scott was still a slave. As the court had decided against his citizenship upon the plea in abatement, it was insisted that further decision upon the question of his freedom or slavery was extrajudicial and mere oliter dicta. But the Chief Justice held that the correction of one error in the court below did not deprive the appellate court of the power of examining further into the record and correcting any other material error which may have been committed; that the error of an inferior court in actually pronouncing judgment for one of the parties, in a case in which it had no jurisdiction, can be looked into or corrected by this court, even though it had decided a similar question presented in the pleadings. Proceeding to decide the case upon the merits, he held that the territorial clause of the Constitution was confined to the territory which belonged to the United States at the time the Constitution was adopted, and did not apply to territory subsequently acquired from a foreign government. In further examining the question as to what provision of the Constitution authorizes the Federal government to acquire terri- tory outside of the original limits of the United States and what powers it may exercise therein over the person or property of a citizen of the United States, he made use of the following ex- pressions, upon which great reliance is placed by the plaintiff in this case (p. 446) : "There is certainly no power given by the Constitution to the Federal government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its oasti pleasure; and if a new State is admitted, it needs no further legislation by Congress, because the Constitution itself defines the relative rights and powers and du- ties of the State, and the citizens of the State, and the Federal government. But no power is given to acquire a territory to be held and governed permanently in that character." He further held that citizens who migrate to a territory cannot be ruled as mere colonists, and that while Congress had the power of legislating over territories until States were formed from them, it could not deprive a citizen of his property merely because he brought it into a particular territory of the United States, and that this doctrine applied to slaves as well as to other property. Hence, it followed that the act of Congress which prohibited a citizen from holding and owning slaves in territories north of rSO CASES ON CONSTITUTIONAL LAW. 36° 30' (known as the Missouri Compromise) was unconstitu- tional and void, and the fact that Scott was carried into such, ter- ritory, referring to what is now known as Minnesota, did not en- title him to his freedom. He further held that, whether he was made free by being taken into the free State of Illinois and being kept there two years, depended upon the laws of Missouri and not those of Illinois, and that by the decisions of the highest court of that State his status as a slave continued, notwithstanding his residence of two years in lUinois. It must be admitted that this case is a strong authority in favor of the plaintiff, and if the opinion of the Chief Justice be taken at its full value it is decisive in his favor. We are not, however, bound to overlook the fact that, before the Chief Justice gave utterance to his opinion upon the merits, he had already disposed of the case adversely to the plaintiff upon the question of Jurisdic- tion, and that, in view of the excited political condition of the country at the time, it is unfortunate that he felt compelled to discuss the question upon the merits, particularly so in view of the fact that it involved a ruling that an act of Congress, which had been acquiesced in for thirty years, was declared unconstitu- tional. It would appear from the opinion of Mr. Justice Wayne that the real reason for discussing these constitutional questions was that "there had become such a difference of opinion" about them "that the peace and harmony of the country required the settlement of them by judicial decision." (p. 455.) The attempt was not successful. It is sufficient to say that the country did not acquiesce in the opinion, and that the civil war, which shortly thereafter followed, produced such changes in judicial, as well as public sentiment, as to seriously impair the authority of this case. While there is much in the opinion of the Chief Justice which tends to prove that he thought all the provisions of the Constitu- tion extended of their own force to the territories west of the Mississippi, the question actually decided is readily distinguishable from the one involved in the case under consideration. The power to prohibit slavery in the territories is so different from the power to impose duties upon territorial products, and depends upon such different provisions of the Constitution, that they can scarcely be considered as analogous, unless we assume broadly that every DOWNES V. BIDWELL. 781 clause of the Constitution attaches to the territories as well as; to the States — a claim quite inconsistent with the position of thej court in the Canter case. If the assumption be true, that slaves! are indistinguishable from other property, the inference from the Dred Scott case is irresistible that Congress had no power to prohibit their introduction into a territory. It would scarcely be insisted that Congress could with one hand invite settlers to lo- cate in the territories of the United States, and with the other deny them the right to take their property and belongings with them. The two are so inseparable from each other that one could scarcely be granted and the other withheld without an exercise of arbitrary power inconsistent with the underlying principles of a free government. It might indeed be claimed with great plausi- bility that such a law would amount to a deprivation of property within the Fourteenth Amendment. The difficulty with the Dred Scott case was that the court refused to make a distinction be- tween property ia general and a wholly exceptional class of prop- erty. Mr. Benton tersely stated the distinction by saying that the Virginian might carry his slave into the territories, but he could not carry with him the Virginian law which made him a slave. In his history of the Dred Scott case, Mr. Benton states that the doctrine that the Constitution extended to territories as well as to States, first made its appearance in the Senate in the session of 1848-1849, by an attempt to amend a bill giving territorial government to California, ISTew Mexico and Utah, (itself 'Tiitched on" to a general appropriation bill,) by adding the words "that the Constitution of the United States and all and singular the several acts of Congress (describing them,) be and the same hereby are extended and given full force and efficacy in said territories." Says Mr. Benton: "The novelty and strangeness of this projfosi- tion called up Mr. Webster, who repulsed as an absurdity and as an impossibility the scheme of extending the Constitution to the territories, declaring that instrument to have been made for States, not territories; that Congress governed the territories independ- ently of the Constitution and incompatibly with it; that no part of it went to a territory but what Congress chose to send; that it could not act of itself anywhere, not even in the States for which it was made, and that it required an act of Congress to put it in operation before it had effect anywhere. Mr. Clay was of 782 CASES ON CONSTITUTIONAL LAW. the same opinion, and added: 'Now, really, I mnst say the idea that eo instantij upon the consummation of the treaty, the Consti- tution of the United States spread itself over the acquired terri- tory and carried along with it the institution of slavery, is so irreconcilable with my comprehension, or ' any reason I possess, that I hardly know how to meet it.' Upon the other hand, Mr. Calhoun boldly avowed his intent to carry slavery into them under the wing of the Constitution, and denounced as enemies of the South all who opposed it." The amendment was rejected by the House, and a contest brought on which threatened the loss of the general appropriation bill in which this amendment was incorporated, and the Senate finally receded from its amendment. "Such," said Mr. Benton, "were the portentous circumstances under which this new doc- trine first revealed itself in the American Senate, and then as needing legislative sanction requiring an act of Congress to carry the Constitution into the territories and to give it force and effi- cacy there." Of the Dred Scott case he says: "I conclude this introductory note with recurring to the great fundamental error of the court, (father of all the political errors,) that of assuming the extension of the Constitution to the territories. I call it as- suming, for it seems to be a naked assumption without a reason to support it, or a leg to stand upon, condemned by the Constitu- tion itself, and the whole history of its formation and administra- tion. Who were the parties to it? The States alone. Their dele- gates framed it in the Federal convention; their citizens adopted it in the State conventions. The Northwest Territory was then in existence and it had been for three years; yet it had no voice either in the framing or adopting of the instrument, no delegate at Philadelphia, no submission of it to their will for adoption. The preamble shows it made by States. Territories are not al- luded to in it." Finally, in summing up the results of the decisions holding the invalidity of the Missouri Compromise and the self-extension of the Constitution to the territories, he declares "that the decisions conflict with the uniform action of all the departments of the Fed- eral government from its foundation to the present time, and cannot be received as rules governing Congress and the people without reversing that action, and admitting the political suprem- acy of the court, and accepting an altered Constitution from DOWNES V. BIDWELL. 783 its hands and taking a new and portentous point of departure in tlie working of tlie government." To sustain the judgment in. the case under consideration it by no means becomes necessary to show that none of the articles of the Constitution apply to the Island of Porto Rico. There is a slear distinction between such prohibitions as go to the very root of the power of Congress to act at all, irrespective of time or place, and such as are operative only "throughout the United States" or among the several States. Thus, when the Constitution declares that "no bill of attainder or ex post facto law shall be passed," and that "no title of nobil- ity shall be granted by the United States," it goes to the com- petency of Congress to pass a bill of that description. Perhaps, the same remark may apply to the First Amendment, that "Con- gress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ; or the right of the people to peacefully assemble, and to petition the government for a redress of griev- ances." We do not wish, however, to be understood as expressing an opinion how far the bill of rights contained in the first eight amendments is of general and how far of local appiication. Upon the other hand, when the Constitution declares that all duties shall be uniform "throughout the United Sta.tes," it be- comes necessary to inquire whether there be any territory over which Congress has jurisdiction which is not a part of the "United States," by which term we understand the Staies whose people united to form the Constitution, and. such as have since been admitted to the Union upon an equality with them. Not only did the people in adapting th"e Thirteenth Amendment thus recognize a distinction between the United States and "any place subject to their jurisdiction," but Congress itself, in the act of March 27, 1804, c. 56, 2 Stat. 298, providing for the proof of public records, applied the provisions of the act not cftily to "every court and office within the United States," but to the "coiurts and offices of the respective territories of the United States and countries subject to the jurisdiction of the United Sjtates," as to the courts and offices of the several States. This classification, adopted by the Eighth Congress, is carried into the Revised Statutes as fol- lows : "Sec. 905. The acts of the legislature of any State or Terri- 784: CASES ON CONSTITUTIONAL LAW. tory, or of any country subject to the jurisdiction of the United States, shall be authenticated," etc. "Sec. 906. All records and exemplifications of books which may be kept in any public office of any State or Territory, or any country subject to the jurisdiction of the United States," etc. Unless these words are to be rejected as meaningless, we must treat them as a recognition by Congress of the fact that there may be territories subject to the jurisdiction of the United States, which are not of the United States. In determining the meaning of the words of Article I, section 6, "uniform throughout the United States," we are bound to con- sider not only the provisions forbidding preference being given to the ports of one State over those of another (to which attention has already been called,) but the other clauses declaring that no tax or duty shall be laid on articles exported from any State, and that no State shall, without the consent of Congress, lay any imposts or duties upon imports or exports, nor any duty on ton- nage. The object of all of these was to protect the States which united in forming the Constitution from discriminations by Con- gress, which would operate unfairly or injuriously upon some States and not equally upon others. The opinion of Mr. Justice White in Knowlton v. Moore, 178 U. S. 41, contains an elabo- rate historical review of the proceedings in the convention, which resulted in the adoption of these different clauses and their arrangement, and he there comes to the conclusion (p. 105) that "although the provision as to preference between ports and that regarding uniformity of duties, imposts and excises were one in purpose, one in their adoption," they were originally placed to- gether, and "became separate only in arranging the Constitution for the purpose of style." Thus construed together, the purpose is irresistible that the words "throughout the United States" are indistinguishable from the words "among or between the several States," and that these prohibitions were intended to apply only to commerce between ports of the several States as they then ex- isted or should thereafter be admitted to the Union. Indeed, the practical interpretation put by Congress itpon the Constitution has been long continued and uniform to the efCect that the Constitution is applicable to territories acquired by pr.-- chase or conquest only when and so far as Congress shall so di- rect. Notwithstanding its duty to "guarantee to every State in DOWNES T. BIDWELL. 785 this tTnion a republican form of government," Art. IV, sec. 4, by which we understand, according to the definition of Webster, "a government in which the supreme power resides in the whole body of the people, and is exercised by representatives elected by them," Congress did not hesitate, in the original organization of the territories of Louisiana, Florida, the Northwest Territory, ».nd its subdivisions of Ohio, Indiana, Michigan, Illinois and Wis- consin, and still more recently in the case of Alaska, to establish a form of government bearing a much greater analogy to a British crown colony than a republican State of America, and to vest the legislative power either in a governor and council, or a gov- ernor and judges, to be appointed by the President. It was not until they had attained a certain population that power was given them to organize a legislature by vote of the people. In all these cases, as well as in Territories subsequently organized west of the Mississippi, Congress thought it necessary either to extend the Constitution and laws of the United States over them, or to de- clare that the inhabitants should be entitled to enjoy the right of trial by jury, of bail, and of the privilege of the writ of habeas corpus, as well as other privileges of the bill of rights. We are also of opinion that the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants, and what their status shall be in what Chief Justice Marshall termed the "American Empire." There seems to be no middle ground between this position and the doctrine that if their inhabitants do not become, immediately upon annexation, citizens of the United States, their children thereafter born, whether savages or civilized, are such, and entitled to all the rights, privi- leges and immunities of citizens. If such be their status, the con- sequences will be extremely serious. Indeed, it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions and modes of life, shall become at once citizens of the United States. In all its treaties hitherto the treaty-making power has made special provision for this subject; in the cases of Louisiana and Florida, by stipulating that "the inhabitants shall be incorporated into the Union of the United States and admitted as soon as possible ... to the enjoy- ment of all the rights, advantages and immunities of citizens of 50 786 CASES ON CONSTITUTIONAL LAW. the United States"; in the case of Mexico, that they should '^be incorporated into the Union, and be admitted at the proper time, (to be judged of by the Congress of the United States,) to the enjoyment of all the rights of citizens of the United States"; in the case of Alaska, that the inhabitants who remained three years, "with the exception of uncivilized native tribes, shall be admitted to the enjoyment of all the rights," etc.; and in the case of Porto Eico and the Philippines, "that the civil rights and political status of the native inhabitants • . . shall be determined by Congress." In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto. .... It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws and customs of the people, and from differences of soil, climate and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians. We suggest, without intending to decide, that there may be a distinction between certain natural rights, enforced in the Con- stitution by prohibitions against interference with them, and what may be termed artificial or remedial rights, which are peculiar to our own system of jurisprudence. Of the former class are the rights to one's own religious opinion and to a public expression of them, or, as sometimes said, to worship God according to the dictates of one's own conscience; the right to personal liberty and individual property; to freedom of speech and of the press; io free access to courts of justice, to due process of law and to an equal protection of the laws; to immunities from unreason- able searches and seizures, as well as cruel and unusual punish- ments; and to such other immunities as are indispensable to a free government. Of the latter class are the rights to citizenship, to suffrage. Minor v. Happersett, 31 Wall. 162, and to the particu- lar methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence, and some of which have already been held by the States to be unnecessary to the proper protection of individuals. Whatever may be finally decided by the American people as to .the status of these islands and their inhabitants — whether they DOWNBS T. BIDWELL. 787 fihall be introduced into the sisterhood of States or he permitted to form independent governments — ^it does not follow that, in the meantime, awaiting that decision, the people are in the matter of personal rights improtected by the provisions of onr Constitution, and subject to the merely arbitrary control of Congress. Even if regarded as aliens, they are entitled under the principles of the Constitution to be protected in life, liberty and property. This has been frequently held by this court in respect to the Chinese, even when aliens, not possessed of the political rights of citizens of the United States. Yick Wo. v. Hopkins, 118 1J. S. 356; Fong Yue Ting v. United States, 149 U. S. 698; Lem Moon Sing, 158 U. S. 538, 547; Wong Wing v. United States, 163 U. S. 328. We do not desire, however, to anticipate the diffi- culties which would naturally arise in this connection, but merely to discleim any intention to hold that the inhabitants of these territories are subject to an unrestrained power on the part of Congress to deal with them upon the theory that they have no lights, which it is bound to respect. Large powers must necessarily be entrusted to Congress in deal- ing with these problems, and we are bound to assume that they will be judiciously exercised. That these powers may be abused is possible. But the same may be said of its powers under the Constitution as well as outside of it. Human wisdom has never devised a form of government so perfect that it may not be per- verted to bad purposes. It is never conclusive to argue against the possession of certain powers from possible abuses of them. It is safe to say that if Congress should vaiture upon legislation manifestly dictated by selfish interests, it would receive quick rebuke at the hands of the people. Indeed, it is scarcely possible that Congress could do a greater injustice to these islands than wouJd be involved in hcflding that it could not impose upon the States taxes and excises without extending the same taxes to them. Such requirement would bring them at once within our internal revenue system, including stamps, licenses, excises and all the paraphernalia of that system, and applying it to territories which have had no experience of this kind, and where it would prove an intolerable burden. This subject was carefully considered by the Senate committee in charge of the Foraker bill, which found, aftw an examination of the facts, that property in Porto Bico was already burdened 78S CASES ON CONSTITUTIONAL LAW. with a private debt amounting probably to $30,000,000; that no gystem of property taxation was or ever had been in force in the island, and that it probably would require two years to inaugurate one and secure returns from it; that the revenues had always been chiefly raised by duties on imports and exports, and that our internal revenue laws, if applied in that island, would prove oppressive and ruinous to many people and interests; that to undertake to collect our heavy internal revenue tax, far heavier than Spain ever imposed upon their products and vocations, would be to invite violations of the law so innumerable as to make prosecutions impossible, and to almost certainly alienate and destroy the friendship and good will of that people for the United States. In passing upon the questions involved in this and kindred cases, we ought not to overlook the fact that, while the Constitu- tion was intended to establish a permanent form of government for the States which should elect to take advantage of its condi- tions, and continue for an indeiinite future, the vast possibilities of that future could never have entered the minds of its framers. The States had but recently emerged from a war with one of the most powerful nations of Europe; were disheartened by the fail- ure of the confederacy, and were doubtful as to the feasibility of a stronger union. Their territory was confined to a narrow strip of land on the Atlantic coast from Canada to Florida, with a somewhat indefinite claim to territory beyond the AUeghanies, where their sovereignty was disputed by tribes of hostile Indians supported, as was popularly believed, by the British, who had never formally delivered possession under the treaty of peace. The vast territory beyond the Mississippi, which formerly had been claimed by France, since 1763 had belonged to Spain, still a powerful nation, and the owner of a great part of the Western Hemisphere. Under these circumstances it is little wonder that the question of annexing these territories was not made a sub- ject of debate. The dif&eulties of bringing about a union of the States were so great, the objections to it seemed so formidable, that the whole thought of the convention centered upon sur- mounting iJiese obstacles. The question of territories was dis- missed with a single clause, apparently applicable only to the territories then existing, giving Congress the power to govern and dispose of them. DOWNES V. BIDWELL. 789 Had the acquisition of other territories been contemplated as a possibility, could it have been foreseen that, within little more than one hundred years, we were destined to acquire not only the whole -vast region between the Atlantic and Pacific Oceans, but the Eussian possessions in America and distant islands in the Pacific, it is incredible that no provision should have been made for them, and the question whether the Constitution should or should not extend to them have been definitely settled. If it be once conceded that we are at liberty to acquire foreign territory, a presumption arises that our power with respect to such terri- tories is the same power which other nations have been accus- tomed to exercise with respect to territories acquired by them. If, in limiting the power which Congress was to exercise within the United States, it was also intended to limit it with regard to such territories as the people of the United States should thereafter acquire, such limitations should have been expressed. Instead of that, we find the Constitution speaking only to States, except in the territorial clause, which is absolute in its terms, and suggestive of no limitations upon the power of Congress in' dealing with them. The States could only delegate to Congress such powers as they themselves possessed, and as they had no power to acquire new territory they had none to delegate in that connection. The logical inference from this is, that if Congress had power to acquire new territory, which is conceded, that power was not hampered by the constitutional provisions. If, upon the other hand, we assume that the territorial clause of the Constitu- tion was not intended to be restricted to such territory as the United States then possessed, there is nothing in the Constitution to indicate that the power of Congress in dealing with them was intended to be restricted by any of the other provisions. There is a provision that *'new States may be admitted by the Congress into this Union." These words, of course, carry the Constitution with them, but nothing is said regarding the ac- quisition of new territories or the extension of the Constitution over them. The liberality of Congress in legislating the Con- stitution into all our contiguous territories has undoubtedly fos- tered the impression that it went there by its own force, but there is nothing in the Constitution itself, and little in the interpretation put upon it, to confirm that impression. There is not even an analogy to the provisions of an ordinary mort- 790 CASES ON CONSTITUTIONAL LAW. gage for its attadiment to after-acquired property, without whicK it covers only property existing at the date of the mortgage. In short, there is absolute silence upon the subject. The execu- tive and legislative departments of the government have for more than a century interpreted this silence as precluding the idea that the Constitution attached to these territories as soon as acquired, and unless such interpretation be manifestly con- trary to the letter or spirit of the Constitution, it should be fol- lowed by the judicial department. Cooley's Consti. Lim., sees. 81 to 85. Burrow-Giles Lithographic Co. v. Sarony, 111 U. S. 53, 67; Field v. Clark, 143 U. S. 649, 691. Patriotic and intelligent men may differ widely as to the de- sirableness of this or that acquisition, but this is solely a political question. We can only consider this aspect of the case so far as to say that no construction of the Constitution should be adopted which would prevent Congress from considering each case upon its merits, unless the language of the instrument im- peratively demand it. A false step at this time might be fatal to the development of what Chief Justice Marshall called the American Empire. Choice in some cases, the natural gravita- tion of small bodies towards large ones in others, the result of a successful war in still others, may bring about conditions which would render the annexation of distant possessions desirable. If those possessions are inhabited by alien races, differing from us in religion, customs, laws, methods of taxation and modes of thought, the administration of government and justice, accord- ing to Anglo-Saxon principles, may for a time be impossible; and the question at once arises whether large concessions ought not to be made for a time, that, ultimately, our own theories may be carried out, and the blessings of a free government under the Constitution extended to them. We decline to hold that there is anything in the Constitution to forbid such action. We are therefore of opinion that the Island of Porto Eico is a territory appurtenant and belonging to the United States, but not a part of the United States within the revenue clauses of the Constitution; that the Foraker act is constitutional, so far as it imposes duties upon imports from such island, and that the plaintiff cannot recover back the duties exacted in this case. The judgment of the Circuit Court is therefore Affirmed. DOWNES T. BIDWELK 'idl [Me. Justice White delivered a concurring opinion, in which! Me. Justice Shieas and Me. Justice McKeitna joined. Me. Justice Gbat also delivered a concurring opinion. A dissent- ing opinion was delivered by Me. Chief Justice Fullee, with whom concurred Me. Justice Haelajst, Me. Justice Beeweb and Me. Justice Peckham. Me. Justice Haelan also de- livered a separate dissenting opinion.] Note. — "Duties upon imports from the United States to Porto Eico, collected by the military commander and by the President as Commander-in-Chief, from the time possession was taken of the island until the ratification of the treaty of peace, were legally exacted under the war power." Dooley v. United States, 183 U. S. 233. "As the right to exact duties upon importations from Porto Eico to Kew York ceased with the ratification of the treaty of peace, the correlative right to exact duties upon imports from: New York to Porto Eico also ceased at the same time." Hid. The act of Congress taking effect May 1, 1900, and known as the Foraker Act, which requires all merchandise going into Porto Eico from the United States to pay a duty of fifteen pet cent of the amount paid upon merchandise imported from for- eign countries, the same to be set aside for the exclusive use of Porto Eico and to be abrogated entirely whenever the legis- lature of Porto Eico shall provide a system of local taxation sufficient to meet the financial necessities of the island, is de- clared constitutional. "Now, there can be no doubt whatever that, if the legislative assembly of Porto Eico should, with the consent of Congress, lay a tax upon goods arriving from porta of the United States, such tax, if legally imposed, would be a duty upon imports to Porto Eico, and not upon exports fromi the United States; and we think the same result must follow, if the duty be laid by Congress in the interest and for the benefit of Porto Eico. . . . The action is really correlative to that of Downes v. Bidwell, 183 U. S. 344, in which we held that Congress could lawfully impose a duty upon imports from Porto Eico, notwithstanding the provision of the Constitution that all duties, imposts and excises shall be uniform throughout the United States." Dooley v. United States, 183 U. S. 151, 156, 157. 792 CASES ON CONSTITUTIONAL LAW. ^'ISTo distinction, so far as the question determined in that case [De Lima v. Bidwell, 183 U. S. 1] is concerned, can be made between the Philippines and the Island of Porto Eico, after the ratification of the treaty of peace between the United States and Spain, April 11, 1899." Fourteen Diamond Kings v. United States, 183 U, S. 176. HAWAII V. MANKICHI. 190 U. S. 197. Decided June 1, 1903. This was a petition by Mankichi for a writ of habeas corpus tO obtain his release from the Oahu convict prison, where he is con- fined upon conviction for manslaughter, in alleged violation of the Constitution, in that he was tried upon an indictment not found by a grand jury, and convicted by the verdict of nine out of twelve jurors, the other three dissenting from the verdict. Following the usual course of procedure in the Eepublic of Hawaii, prior to its incorporation as a Territory of the United States, the prisoner was tried upon an indictment much in the form of an information at common law, by the Attorney General, and endorsed "a true bill found this fourth day of May, A. D. 1899. A. Perry, first judge of the Circuit Court," etc. From an order of the United States District Court discharging the prisoner the Attorney-General of the Territory appealed to tliis court Mr. Justice Bhown", after making the foregoing statement, de- livered the opinion of the court. The question involved in this case is an estremely simple one. The difficulty is in fixing upon the principles applicable to its solution. By a joint resolution adopted by Congress, July 7, 1898, 30 Stat. 750, known as the ISTewlands resolution, and with the con- sent of the Eepublic of Hawaii, signified in the manner provided in its constitution, the Hawaiian Islands, and their dependencies, were annexed "as a part of the territory of the United States, and subject to the sovereign dominion thereof," with the following con- dition: "The municipal legislation of the Hawaiian Islands, not HAWAII v. MANKICHI. 793 enacted for the fulfillment ef the treaties so extinguished, and not inconsistent with this joint resolution nor contrary to the Consti- tution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine." The material parts of this reso- lution are printed in the margin^. Though the resolution was iJolnt resolution to iprovide for annexing tlie Hawaiian Islands to the United States. 30 Stat. 750. Whereas the goTernment of the Republic of Hawaii having, in due form, signified its consent, in the manner provided by its constitution, to cede absolutely and without reserve to the United States of America all rights of sovereignty of whatsoever kind in and over the Hawaiian Islands and their dependencies, and also to cede and transfer to the United States the absolute fee and ownership of all public, government or crown lands, public buildings or edifices, ports, harbors, military equipment, and all other public property of every kind and description belonging to the government of the Hawaiian Islands, together with every right and appurtenance thereunto appertaining: Therefore, JBesolved ty the Senate and Bouse of Representatives of the United States of America in Congress assembled, That said cession is accepted, ratified, and confirmed, and that the said Hawaiian Islands and their dependencies be, and they are hereby, annexed as a part of the terri- tory of the United States and are subject to the sovereign dominion thereof, and that all and singular the property and rights hereinbefore mentioned are vested in the United States of America. Until Congress shall provide for the government of such islands all the civil, judicial, and military powers exercised by the officers of the existing government in said islands shall be vested in such person or persons and shall be exercised in such manner as the President of the United States shall direct; and the President shall have power to remove said officers and fill the vacancies so occasioned. The existing treaties of the Hawaiian Islands with foreign nations shall forthwith cease and determine, being replaced by such treaties as may exist, or as may be hereafter concluded, between the United States and such foreign nations. The municipal legislation of the Hav/aiian Islands, not enacted for the fulfillment of the treaties so extinguished, and not inconsistent with this joint resolution nor con- trary to the Constitution of the United States nor to any existing treaty of the United States, shall remain in force until the Congress of the United States shall otherwise determine. Until legislation shall be enacted extending the United States cus- toms laws and regulations to the Hawaiian Islands the existing cus- toms relations of the Hawaiian Islands with the United States and other countries shall remain unchanged. There shall be no further immigration of Chinese into the Hawaiian 794 CASES ON CONSTITUTIONAL LAW. passed July 7, the formal transfer was not made until August 13, ■when, at noon of that day, the American flag was raised oyer the government house, and the islands ceded with appropriate cere- monies to a representative of the United States. Under the con- ditions named in this resolution the Hawaiian Islands remained Tinder the name of the '^Republic of Hawaii" until Jime 14, 1900, when they were formally incorporated by act of Congress under the name of the "Territory of Hawaii." 31 Stat. 141. By this act the Constitution was formally extended to these islands, sec. 5, and special provisions made for empanelling grand juries and for unanimous verdicts of petty juries. See. 83. The question is whether, in continuing the municipal legisla- tion of the islands not contrary to the Constitution of the United States, it was intended to abolish at once the criminal procedure theretofore in force upon the islands, and to substitute immedi- ately and without new legislation the common law proceedings by grand and petit jury, which had been held applicable to other organized Territories, Webster v. Eeid, 11 How. 437; Amerieaji Publishing Co. v. Fisher, 166 U. S. 464; Thompson v. Utah, 170 U. S. 343, though we have also held that the States, when once admitted as such, may dispense with grand juries, Hurtado v. California, 110 U. S. 516; and perhaps allow verdicts to be ren- dered by less than a unanimous vote. American Publishing Co. v. Fisher, 166 U. S. 464; Thompson v. Utah, 170 U. S. 343. In fixing upon the proper construction to be given to this resolu- tion, it is important to bear in mind the history and condition of the islands prior to their annexation by Congress. Since 1847 they had enjoyed the blessings of a civilized government, and a system of jurisprudence modelled largely upon the common law of Eng- land and the United States. Though lying in the tropical zone, the salubrity of their climate and the fertility of their soil had Islands, except upon such conditions as are now or may hereafter be allowed by the laws of the United States; and no Chinese, by reason of anything herein contained, shall be allowed to enter the United States from, the Hawaiian Islands. The President shall appoint five commissioners, at least two of whom shall be residents of the Hawaiian Islands, who shall, as soon, as reasonably practicable, recommend to Congress such legislation con- cerning the Hawaiian Islands as they shall deem necessary or proper. HAWAII v. MANKICHI. 795 attracted thither large numbers of people from Europe and Ameri- ca, who brought with them political ideas and traditions which," about sixty years ago, found expression in the adoption of a code of laws appropriate to their new conditions. Churches were founded, schools opened, courts of justice established, and civil and criminal laws administered upon substantially the same prin- ciples which prevailed in the two countries from which most of the immigrants had come. Taking the lead, however, in a change which has since been adopted by several of the United States, no provision was made for grand juries, and criminals were prose- cuted upon indictments found by judges. By a law passed in 1847, the number of a jury was fixed at twelve, but a verdict might be rendered upon the agreement of nine jurors. The ques- tion involved in this case is whether it was intended that this prac- tice should be instantly changed, and the criminal procedure embodied in the Fifth and Sixth Amendments to the Constitu- tion be adopted as of August 12, 1898, when the Hawaiian flag was hauled down and the American flag hoisted in its place. If the words of the Newlands resolution, adopting the munici- pal legislation of Hawaii not contrary to the Constitution of the :United States, be literally applied, the petitioner is entitled to his discharge, since that instrument expressly requires. Amend- ment 5, that "no person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury;" and. Amendment 6, that "in all criminal prose- cutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." But there is another question underlying this and all other rules for the interpretation of statutes, and that is, what was the intention of the legislative body ? Without going back to the famous case of the drawing of blood in the streets of Bologna, the books are full of authorities to the effect that the intention of the law-making power will pre- vail, even against the letter of the statute, or, as tersely expressed by Mr. Justice Swayne in Smythe v. Fiske, 23 Wall. 374, 380: "A thing may be within the letter of a statute and not within its pieaning, and within its meaning, though not within its letter. The intention of the law-maker is the law." A parallel expression is found in the opinion of Mr. Chief Justice Thompson of the 796 CASES ON CONSTITUTIONAL LAW. Supreme Court of the State of New York, (subsequently Mr. Justice Thompson of this court,) in People v. Utica Ins. Co., 15 Johns. 358, 381: "A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute, is not within the statute, unless it be within the intention of the makers." Without going farther, numerous illustrations of this maxim are found in the reports of our own court. Nowhere is the doctrine more broadly stated than in United States v. Kirby, 7 Wall, 483, in which an act of Congress, providing for the punishment of any person who "shall knowingly and wilfully obstruct or retard the passage of the mail, or any driver or carrier," was held not to apply to a state officer who had a warrant of arrest against a car- rier for murder, the court observing that no officer of the United States was placed by his position above responsibility to the legal tribunals of the country, and to the ordinary processes for his arrest and detention when accused of felony. "All laws," said the court, "should receive a sensible construction. General terms should be so limited in their application as not to lead to injus- tice, oppression, or an absurd consequence. It will always, there- fore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character. The reason of the law in such cases should prevail over its letter." A case was cited from Plowden holding that a statute which punished a .prisoner as a felon who broke prison, did not extend to a prisoner who broke out when the prison was on fire, "for he is not to be hanged because he would not stay to be burned." Similar language to that in Kirby's case was used in Carlisle v. United States, 16 Wall. 147, 153. In Atkins v. Disintegrating Co., 18 Wall, 272, it was held that a suit in personam in admiralty was not a "civil suit" within the eleventh section of the judiciary act, though clearly a civil suit in the general sense of that phrase, and as used in other sections of the same act. See also In re Louisville Underwriters, 134 U. S. 488. So in Heydenfeldt v. Daney Gold &c. Co., 93 U. S. 634, 638, it was said by Mr. Justice Davis : "If a literal interpretation of any part of it (a statute) would operate unjustly, or lead to absurd results, or be contrary to the evident meaning of the HAWAII y. MANKICHI. 797 act taken as a whole, it should be rejected. There is no better way of discovering its true meaning, when expressions in it are rendered ambiguous by their connection with other clauses, than by considering the necessity for it, and the causes which induced its enactment." To the same effect are the Church of the Holy Trinity v. United States, 143 TJ. S. 457, in which many cases are cited and reviewed, and Lau Ow Bew v. United States, 144 U. S. 47, 59. In this latter case it was held that a statute requiring the permission of the Chinese government, and the identification of "every Chinese person other than a laborer, who may be entitled by treaty or act of Congress to come within the United States," did not apply to "Chinese merchants already domiciled in the United States, who, having left the country for temporary pur- poses, animo revertendi, seek to reenter it on their return to their business and their homes." Said the Chief Justice : "Noth- ing is better settled than that statutes should receive a sensible construction, such as will effectuate the legislative intention, and, if possible^ so as to avoid an unjust or an absurd conclusion." Two recent English cases are instructive in this connection : In Plumstead Board of Works v. Spackman, L. E. 13 Q. B. D. 878, 887, it was said by the Master of EoUs, afterwards Lord Esher: "If there are no means of avoiding such an interpretation of the statute," (as will amount to a great hardship,) "a judge must come to the conclusion that the legislature by inadvertence has committed an act of legislative injustice; but to my mind a judge ought to struggle with aU the intellect that he has, and with all the vigor of mind that he has, against such an interpretation of an act of Parliament; and, unless he is forced to come to a con- trary conclusion, he ought to assume that it is impossible that the legislature could have so intended." See also Ex parte Walton, L. R. 17 Ch. D. 746. Is there any room for construction in this case, or, are the words of the resolution so plain that construction is impossible? There are many reasons which induce us to hold that the act was not intended to interfere with the existing practice when such inter- ference would result in imperiling the peace and good order of the islands. The main objects of the resolution were, 1st, to accept the cession of the islands theretofore made by the Eepublic of Hawaii, and to annex the same "as a part of the territory of 798 CASES ON CONSTITUTIONAL LAW. the United States and subject to the sovereign dominion thereof;" 2d, to abolish all existing treaties with various nations, and to recognize only treaties between the United States and such foreign nations ; 3d, to continue the existing laws and customs regulations, BO far as they were not inconsistent with the resolution, or contrary to the Constitution, until Congress should otherwise determine. From the terms of this resolution it is evident that it was intended to be merely temporary and provisional; that no change in the government was contemplated, and that until further legislation the Republic of Hawaii continued in existence. Even its name was not changed until 1900, when the "Territory of Hawaii" was organized. The laws of the United States were not extended over the islands until the organic act was passed on April 30, 1900, when, so careful was Congress not to disturb the existing condi- tion of things any further than was necessary, it was provided, sec. 5, that only "the laws of the United States, which are not locally inapplicable, shall have the same force and effect within the said Territory as elsewhere in the United States." There was apparently some discretion left to the courts in this connection. Indianapolis &c. E. R. Co. v. Horst, 93 U. S. 391, 299. The fact already mentioned that Congress in this organic act inserted a provision for the empanelling of grand juries and for the una- nimity of verdicts indicates an understanding that the previous practice had been pursued up to that time, and that a change in the existing law was contemplated. Of course, under the Newlands resolution, any new legislation must conform to the Constitution of the United States, but how far the exceptions to the existing municipal legislation were intended to abolish existing laws, must depend somewhat upon circumstances. Where the immediate application of the Con- stitution required no new legislation to take the place of that which the Constitution abolished, it may be well held to have taken immediate effect; but where the application of a procedure hith- erto well known and acquiesced in, left nothing to take its place, without new legislation, the result might be so disastrous that we might well say that it could not have been within the contempla- tion of Congress. In all probability the contingency which has actually arisen occurred to no one at the time. If it had, and its consequences were foreseen, it is incredible that Congress should not have provided against it. HAWAII v. MANKICHI. 799 If the negative words of the resolution, "nor contrary to the Constitution of the United States," be construed as imposing upon the islands eyery provision of a Constitution, which must have been unfamiliar to a large number of their inhabitants, and for which no previous preparation had been made, the consequences in this particular connection would be that every criminal in the Hawaiian Islands convicted of an infamous -offense between August 13, 1898, and June 14, 1900, when the act organizing the territo- rial government took effect, must be set at large ; and every verdict in a civil case rendered by less than a unanimous jury held for naught. Surely such a result could not have been within the con- templation of Congress. It is equally manifest that such could not have been the intention of the Eepublic of Hawaii in surren- dering its autonomy. Until then it was an independent nation, exercising all the powers and prerogatives of complete sovereignty. It certainly could not have anticipated that, in dealing with another independent nation, and yielding up its sovereignty, it had denuded itself, by a negative pregnant, of all power of en- forcing its criminal laws according to the methods which had been in vogue for sixty years, and was adopting a new procedure for which it had had no opportunity of making preparation. The legislature of the Eepublic had just adjourned, not to convene again until some time in 1900, and not actually convening until 190-1. The resolution on its face bears evidence of having been intended merely for a temporary purpose, and to give time to the Republic to adapt itself to such form of territorial govern- ment as should afterwards be adopted in its organic act. The language of Mf. Buchanan, then Secretary of State, in holding that the military government established in California did not cease to exist with the treaty of peace, but continued as a government de facto until Congress should" provide a terri- torial government, is peculiarly applicable to this case. "The great law of necessity justifies this conclusion. The consent of the people is irresistibly inferred from the fact that no civilized community could possibly desire to abrogate an existing govern- ment, when the alternative presented would be to place them- selves in a state of anarchy, beyond the protection of all laws, and reduce them to the unhappy necessity of submitting to the do- minion of the strongest." 16 How. 184. 800 CASKS ON CONSTITUTIONAL LAW. It is insisted, however, that as the common law of England had been adopted in Hawaii by the Code of 1897, it was within the power of the courts to summon a grand jury, and that such action might have been taken and criminals tried upon indictments properly found, and convicted by unanimous verdict. The sug- gestion is rather fanciful than real, since section 1109 of the Code of 1897, adopting the common law of England, contained a proviso that "no person shall be subject to criminal proceedings except as provided by the Hawaiian laws." These laws provided expressly, sec. 616, Penal Laws of 1897, as follows: "The neces- sary bills of indictment shall be duly prepared by a legal prosecut- ing officer and be duly presented to the presiding judge of the court before the arraignment of the accused, and such judge shall, after examination, certify upon each bill of indictment whether he finds the same a true bill or not." The question thus squarely presented to every judge in the Republic was, whether he was bound to summon a grand jury under the Newlands resolution, when no provision existed by law for empanelling the same or their payment, and when in so doing he was obliged to ignore the plain statute of his own country. It is not intended here to decide that tlie words "nor contrary to the Constitution of the United States" are meaningless. Clearly they would be operative upon any municipal legislation thereafter adopted, and upon any proceedings thereafter had, when the application of the Constitution would not result in the destruction of existing provisions conducive to the peace and good order of the community. Therefore we should answer without hesitation in the negative the question put by counsel for the petitioner in their brief: "Would municipal statutes of Hawaii, allowing a conviction of treason on circumstantial evidence, or on the testimony of one witness, depriving a person of liberty by the will of the legislature and without process, or confiscating pri- vate property for public use without compensation, remain in force after an annexation of the Territory to the United States, which was conditioned upon the extinction of all legislation contrary to the Constitution?" We would even go farther, and say that most, if not all, the privileges and immunities contained in the bill of rights of the Constitution were intended to apply from the moment of annexation^ but we place our decision of this ease upon HAWAII V. MANKICHI. 801 the grotind that the two rights alleged to be violated in this case are not fundamental in their nature, but concern merely a method ■ of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property and their well- being. Inasmuch as we are of opioion that the status of the islands and the powers of their provisional government were measured by the Newlands resolution, and the case has been argued upon that theory, we have not deemed it necessary to consider what would have been its position had the important words "nor con- trary to the Constitution of the United States" been omitted, or to reconsider the questions which arose in the Insular Tariff cases regarding the power of Congress to annex territory without at the same time extending the Constitution over it. Of course, for the reasons already stated, the questions involved in this case could arise only from such as occurred between the taking effect of the joint resolution of July 7, 1898, and the act of April 30, 1900, establishing the territorial government. The decree of the District Court for the Territory of Hawaii must le reversed, and the case remanded to that court with in- structions to dismiss the .petition. Me. Justice White and Mr. Justice McKenita, concurring. The court in its opinion disposes of the case solely by a con- struction of the act of Congress. Conceding, arguendo, that such view is wholly adequate to decide the cause, I concur in the mean- ing of the act as expoxmded in the opinion of the court, and in the main with the reasoning by which that interpretation is elucidated. I prefer, however, to place my concurrence in the judgment upon an additional ground which seems to be more fundamental. That ground is this: That as a consequence of the relation which the Hawaiian Islands occupied towards the United States, growing out of the resolution of annexation, the provisions of the Fifth and Sixth Amendments of the Constitution concerning grand and petit juries were not applicable to that territory, because, whilst the effect of the resolution of annexation was to acquire the islands and subject them to the sovereignty of the United States, neither the terms of the resolution nor the situation which arose from it served to incorporate the Hawaiian Islands into the United States 51 802 CASES ON CONSTITUTIONAL LAW. and make them an integral part thereof. In other words, in my opinion, the ease is controlled by the decision in Downes v. Bid- well, 182 TJ. S. 244 Me. Justice McKenna autliorizes me to say that he also concurs in the result for the fore- going reasons. [Me. Chief Justice Fullek, with whom concurred Me. Jus- tice Hahlan, Me. Justice Brewee, and Mk. Justice Peck- ham, delivered a dissenting opinion. Me. Justice Harlan also delivered a separate dissenting opinion.] DORR V. tWITED STATES. 195 TJ. S. 138. Decided May 31, 1904. Me. Justice Day delivered the opinion of the court. This case presents the question whether, in the absence of a statute of Congress expressly conferring the right, trial by jury is a necessary incident of judicial procedure in the Philippine Islands, where demand for trial by that method has been made by. the accused and denied by the courts established in the islands. The recent consideration by this court and the full discussion had in the opinions delivered in the so-called "Insular cases," ren- ders superfluous any attempt to reconsider the constitutional rela- tion of the powers of the government to territory acquired by a treaty cession to the United States. De Lima v. Bidwell, 182 U. S. 1; Downes v. Bidwell, 183 U. S. 244. The opinions rendered in those cases cover every phase of the question, either legal or historical, and it would be useless to undertake to add to the elaborate consideration of the subject had therein. In the still more recent case of Hawaii v. Mankichi, 190 U. S. 197, the right to a jury trial in outlying territory of the United States was under consideration. For the present purpose it is only necessary to state certain conclusions which are deemed to be established by prior adjudications, and are decisive of this case. It may be regarded as settled that the Constitution of the United States is the only source of power authorizing action by any branch of the Federal Government. "The Government of the DORR V. UNITED STATES. 803 United States was born of the Constitution, and all powers which it enjoys or may exercise must be either derived expressly or by implication from that instrument." Downes v. Bidwell, 183 U. S. 244, 288, and cases cited. It is equally well settled that the TJnited States may acquire territory in the exercise of the treaty- making power by direct cession as the result of war, and in making effectual the terms of peace; and for that purpose has the powers of other sovereign nations. This principle has been recognized by this court from its earliest decisions. The convention which framed the Constitution of the United States, in view of the ter- ritory already possessed and the possibility of acquiring more, in- serted in that instrument, in article IV, section 3, a grant of express power to Congress "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." As early as the February term, 1810, of this court in the case of Sere and Laralde v. Pitot and others, 6 Cranch, 333, Chief Justice Marshall, delivering the opinion of the court, said : "The power of governing and legislating for a territory is the inevitable consequence of the right to acquire and to hold territory. Could this position be contested, the Constitution of the United States declares that 'Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States.' Accordingly we find Congress possessing and exercising the absolute and undis- puted power of governing and legislating for the Territory of Orleans. Congress has given them a legislative, an executive and a judiciary, with such powers as it has been their will to assign^ to those departments respectively." And later, the same eminent judge, delivering the opinion of the court in the leading case upon the subject, American Insur- ance Co. V. Canter, 1 Pet. 511, 542, says: "The Constitution confers absolutely on the government of the Union the powers of making war and of making treaties; conse- quently that government possesses the power of acquiring terri- tory, either by conquest or by treaty. The usage of the world is, if a nation be not entirely subdued, to consider the holding of conquered territory as a mere military occupation, until its fate shall be determined at the treaty of peace. If it be ceded by the 804 CASES ON CONSTITUTIONAL LAW. treaty, the acquisition is confirmed, and the ceded territory be- comes a part of the nation to which it is annexed, either on the terms stipulated in the treaty of cession, or on such as its new master shall impose. On such transfer of territory it has never been held that the relations of the inhabitants with each other undergo any change. Their relations with their former sovereign are dissolved and new relations are created between them and the government which has acquired their territory. The same act which transfers their country transfers the allegiance of those who remain in it; and the law, which may be denominated political, is necessarily changed, although that which regulates the intercourse and general conduct of individuals remains in force until altered by the newly created power of the State. "On the 3d of February, 1819, Spain ceded Florida to the United States. The sixth article of the treaty of cession contains the following provision : 'The inhabitants of the territories, which his Catholic Majesty cedes to the United States by this treaty, shall be incorporated in the Union of the United States as soon as may be consistent with the principles of the Federal Constitution, and admitted to the enjoyment of the privileges, rights and immunities of the citizens of the United States.' "This treaty is the law of the land, and admits the inhabitants of Florida to the enjoyment of the privileges, rights and immunities of the citizens of the United States. It is unnecessary to inquire whether this is not their condition, independent of stipulation. They do not, however, participate in political power; they do not share in the government till Florida shall become a State. In the meantime Florida continues to be a territory of the United States, governed by virtue of that clause in the Constitution which em- powers Congress 'to make all needful rules and regulations respect- ing the territory or other property belonging to the United States.' " While these cases, and others which are cited in the late case of Downes v. Bidwell, siifra, sustain the right of Congress to make laws for the government of territories, without being subject to all the restrictions which are imposed upon that body when passing laws for the United States, considered as a political body of States in union, the exercise of the power expressly granted to govern the territories is not without limitations. Speaking of this power, DORR T. UNITED STATES. 805 Mr. Justice Curtis, in the ease of Scott v. Sandford, 19 How. 393, 614, said: "If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power? *'To this I answer that, in connnon with all the other legislative powers of Congress, it finds limits in the express prohibitions on Congress not to do certain things; that, in the exercise of the legislative power. Congress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution." In every case where Congress undertakes to legislate in the exercise of the power conferred by the Constitution, the question may arise as to how far the exercise of the power is limited by the "prohibitions" of that instrument. The limitations which are to be applied in any given case involving territorial government must depend upon the relation of the particular territory to the United States concerning which Congress is exercising the power conferred by the Constitution. That the United States may have territory, which is not incorporated into the United States as a body politic, we think was recognized by the framers of the Constitution in enacting the article already considered, giving power over the territories, and is sanctioned by the opinions of the justices con- curring in the judgment in Downes v. Bidwell, supra. Until Congress shall see fit to incorporate territory ceded by treaty into the United States, we regard it as settled by that decision that the territory is to be governed under the power exist- ing in Congress to make laws for such territories and subject to such constitutional restrictions upon the powers of that body as are applicable to the situation. For this case, the practical question is, must Congress, in estab- lishing a system for trial of crimes and ofEenses committed in the Philippine Islands, carry to their people by proper affirmative legis- lation a system of trial by jury? If the treaty-making power could incorporate territory into the United States without Congressional action, it is apparent that the treaty with Spain, ceding the Philippines to the United States, carefully refrained from so doing; for it is expressly provided that (Article IX) "the civil rights and political status of the native inhabitants of the territories hereby ceded to the United States 806 CASES ON CONSTITUTIONAL LAW. shall be determined by the Congress." In this language it is clear that it was the intention of the framers of the treaty to reserve to Congress, so far as it could be constitutionally done, a free hand in dealing with these newly-acquired possessions. The legislation upon the subject shows that not only has Con- gress hitherto refrained from incorporating the Philippines into the United States, but in the act of 1902, providing for temporary civil government, 32 Stat. 691, there is express provision that sec- tion eighteen hundred and ninety-one of the Eevised Statutes of 1878 shall not apply to the Philippine Islands. This is the section giving force and effect to the Constitution and laws of the United States, not locally inapplicable, within all the organized territories, and every territory thereafter organized, as elsewhere within the United States. The requirements of the Constitution as to a jury are found in article III, section 2: "The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the States where such crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." And in article six of the amendments to the Constitution: 'Tii all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury, of the State and district wherein the crime shall have been comnaitted, which dis- trict shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be con- fronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." It was said in the Mankichi case, supra, that when the territory had not been incorporated into the United States these require- ments were not limitations upon the power of Congress in provid- ing a government for territory in execution of the powers con- ferred upon Congress. Opinion of Mr. Justice White, p. 220, citing Hurtado v. California, 110 U. S. 516 ; In re Ross, 140 U. S. 453, 473; Bolin v. Nebraska, 176 U. S. 83, and cases cited on page 86; Maxwell v. Dow, 176 U. S. 581, 584; Downes v. Bidwell, 182 U. S. 244. DORR V. UNITED STATES. 807 In the same case Mr. Justice Brown, in the course of his opinion, said: "We would even go farther, and say that most, if not all, the privileges and immunities contained in the bill of rights of the Constitution were intended to apply from the moment of annex- ation ; but we place our decision of this case upon the ground that the two rights alleged to be violated in this case [right to trial by jury and presentment by grand jury] are not fundamental in their nature, but concern merely a method of procedure which sixty years of practice had shown to be suited to the conditions of the islands, and well calculated to conserve the rights of their citizens to their lives, their property and their well being." As we have had occasion to see in the case of Kepner v. United States, decided, ante, p. 100, the President, in his instructions to the Philippine Commission while impressing the necessity of carry- ing into the new government the guarantees of the Bill of Eights securing those safeguards to life and liberty which are deemed essential to our government, was careful to reserve the right to trial by jury, which was doubtless due to the faeb that the civilized portions of the islands had a system of jurisprudence founded upon the civil law, and the uncivilized parts of the archipelago were wholly unfitted to exercise the right of trial by jury. The Spanish system, in force in the Philippines, gave the right to the accused to be tried before judges, who acted in effect as a court of inquiry and whose judgments were not final until passed in review before the audiencia or Supreme Court, with right of final review and power to grant a new trial for errors of law in the Supreme Court at Madrid. To this system the Philippine Com- mission, in executing the power conferred by the orders of the President and sanctioned by act of Congress, act of July 1st, 1902, 33 Stat. 691, has added a guaranty of the right of the accused to be heard by himself and counsel, to demand the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses against him face to face, and to have com- pulsory process to compel the attendance of witnesses in his behalf. And, further, that no person shall be held to answer for a criminal offense without due process of law, nor be put twice in jeopardy of punishment for the same offense, nor be compelled in any criminal case to be a witness against himself. As appears in the 808 CASES ON CONSTITUTIONAL LAW. Kepner case, supra, the accused is given the right of appeal from the judgment of the court of first instance to the Supreme Court, and, in capital cases, the case goes to the latter court without appeal. It cannot be successfully maintained that this system does not give an adequate and efficient method of protecting the rights of the accused as well as executing the criminal law by judicial proceedings, which give full opportunity to be heard by competent tribunals before judgment can be pronounced. Of course, it is a complete answer to this suggestion to say, if such be the fact, that the constitutional requirements as to a jury trial, either of their own force or as limitations upon the power of Con- gress in setting up a government, must control in all the territory, whether incorporated or not, of the United States. But is this a reasonable interpretation of the power conferred upon Congress to make rules and regulations for the territories.? The cases cited have firmly established the power of the United States, like other sovereign nations, to acquire, by the methods known to civilized people, additional territory. The framers of the Constitution, recognizing the possibility of future extension by acquiring territory outside the States, did not leave to impli- cation alone the power to govern and control territory owned or to be acqviired, but in the article quoted expressly conferred the needful powers to make regulations. Eegulations in this sense must mean laws. For, as well as States, territories must be governed by laws. The limitations of this power were suggested by Mr. Justice Curtis in the Dred Scott case, above quoted, and Mr. J^ustice Bradley, in the Mormon Church Case, 136 U. S. 1, said: "Doubtless Congress in legislating for the Territories would be subject to those fundamental limitations in favor of personal rights which are formulated in the Constitution and its amend- ments; but these limitations would exist rather by inference and the general spirit of the Constitution from which Congress de- rives all its powers, than by any express and direct application of its provisions." This language was quoted with approbation by Mr. Justice Brown in Downes v. BidweU, supra, and in the same case Mr. Justice White said: "Whilst, therefore, there is no express or implied limitation on DORR V. UNITED STATES. 809 Congress in exercising its power to create local governments for any and all of the Territories, by which that body is restrained from the widest latitude of discretion, it does not follow that there may not be inherent, although unexpressed, principles which are the basis of all free government which cannot be with impunity transcended. But this does not suggest that every express limita- tion of the Constitution which is applicable has not force, but only signifies that even in cases where there is no direct command of the Constitution which applies there may nevertheless be restric- tions of so fundamental a nature that they cannot be transgressed, although not expressed in so many words in the Constitution." In treating of article 4, section 3, Judge Cooley, in his work on Constitutional Law, says: "The peculiar wording of the provision [section 3, article 4,] has led some persons to suppose that it was intended Congress should exercise, in respect to the territory, the rights only of a proprietor of property, and that the people of the territories were to be left at liberty to institute governments for themselves. It is no doubt most consistent with the general theory of republican institutions that the people everywhere should be allowed self-gov- ernment; but it has never been deemed a matter of right that a local community should be suffered to lay the foundations of in- stitutions, and erect a structure of government thereon, without the guidance and restraint of a superior authority. Even in the older States, where society is most homogeneous and has fewest of the elements of disquiet and disorder, the State reserves to itself the right to shape municipal institutions; and towns and cities are only formed under its directions, and according to the rules and within the limits the State prescribes. With still less reason could the settlers in new territories be suffered to exercise sovereign powers. The practice of the Government, originating before the adoption of the Constitution, has been for Congress to establish governments for the territories; and whether the juris- diction over the district has been acquired by grant from the States, or by treaty with a foreign power. Congress has unques- tionably full power to govern it, and the people, except as Congress shall provide for, are not of right entitled to participate in politi- cal authority until the Territory becomes a State. Meantime they are in a condition of temporary pupilage and dependence; and 810 CASES ON CONSTITUTIONAL LAW. while Congress will be expected to recognize the principle of self- government to such extent as may seem wise, its discretion alone can constitute the measure by which the participation of the people can be determined." Cooley, Principles of Constitutional Law, 164. If the right to trial by Jury were a fundamental right which goes wherever the jurisdiction of the United States extends, or if Con- gress, in framing laws for outlying territory belonging to the United States, was obliged to establish that system by affirmative legislation, it would follow that no matter what the needs or capacities of the people, trial by jury, and in no other way, must be forthwith established, although the result may be to work in- justice and provoke disturbance rather than to aid the orderly ad- ministration of justice. If the United States, impelled by its duty or advantage, shall acquire territory peopled by savages, and of which it may dispose or not hold for ultimate admission to Statehood, if this doctrine is sound, it must establish there the trial by jury. To state much a proposition demonstrates the impossibility of carrying it into practice. Again, if the United States shall acquire by treaty the cession of territory having an established system of jurisprudence, where jury trials are un- known, but a method of fair and orderly trial prevails under an acceptable and long-established code, the preference of the people must be disregarded, their established customs ignored and they themselves coerced to accept, in advance of incorporation into the United States, a system of trial unlcnown to them and unsuited to their needs. We do not think it was intended, in giving power to Congress to make regulations for the territories, to hamper its exercise with this condition. We conclude that the power to govern territory, implied in the right to acquire it, and given to Congress in the Constitution in Article IV, sec. 3, to whatever other limitations it may be sub- ject, the extent of which must be decided as questions arise, does not require that body to enact for ceded territory, not made a part of the United States by Congressional action, a system of laws which shall include the right of trial by jury, and that the Con- stitution does not, without legislation and of its own force, carry such right to territory so situated. . . . * . Further error is assigned in that Act No. 277 [An Act defininf DORR T. UNITED STATES. 811 the law of libel, etc.] of the laws of the Philippine Commission was not passed by competent legal authority. The act was one of the laws of the Philippine Commission, passed by that body by virtue of the authority given the President under the so-called Spooner resolution of March 2, 1901. The right of Congress to authorize a temporary government of this character is not open to question at this day. The power has been frequently exercised and is too well settled to require further discussion. De Lima V. Bidwell, 182 U. S. 1, 196. Judgment affirmed. Mb. Justice Peckham, concurring. I concur in the result of the opinion of the court in this case, which upholds the conviction of the plaintiffs in error on a trial at Manila, Philippine Islands, for a criminal ofEense, without a jury. I do so simply because of the decision in Hawaii v. Man- kichi, 190 U. S. 197. That case was decided by the concurring views of a majority of this court, and although I did not and do not concur in those views, yet the case in my opinion is authority for the result arrived at in the case now before us, to-wit, that a jury trial is not a constitutional necessity in a criminal case in Hawaii or in the Philippine Islands. But, while concurring in this judgment, I do not wish to be understood as assenting to the view that Downes v. Bidwell, 183 U. S. 344, is to be regarded as authority for the decision herein. That case is authority only for the proposition that the plaintiff therein was not entitled to recover the amount of duties he had paid under protest upon the importation into the city of New York of certain oranges from the port of San Juan, in the Island of Porto Eico, in November, 1900, after the passage of the act known as the Poraker act. The various reasons advanced by the judges in reaching this conclusion, which were not concurred iu by a majority of the court, are plainly not binding. The Mankichi case is, however, directly in point, and calls for an afiBrmance of this judgment. I am authorized to say that the Chief Justice and Me. Justice Beewek agree in this concurring opinion. [Mh. Justice Haelan delivered a dissenting opinion.] Note. — "The expressed declarations of the President in Military Order, No. 58, of April 33, 1900, and in the act of July 1, 1903, 812 CASES ON CONSTITUTIONAL LAW. establishing a civil government in the Philippine Islands, both adoptiag with little alteration the provisions of the Bill of Eights, show that it was intended to carry to the Philippine Islands those principles of our Government which the President declared to be established as rules of law for the qiaintenance of individual freedom; and those expressions were used in the sense which has been placed upon them in construing the instru- ment from which they were taken." Kepner v. United States, 195 U. S. 100. "Although a right of appeal was given to the Government by Military Order, No. 58, in criminal cases in the Philippine Is- lands, § 5 of the act of July 1, 1903, establishing a civil gov- ernment ia the Islands, specifically provided that no person should be put twice in jeopardy for the same offense, thereby re- pealing the provision in the military order, and nothing in § 9 of the act of 1903 can be construed as intending to prevail over the specific guaranty contaiued in § 5." Ibid. INDEX. Adams, Charles Francis, Life of Ricliard Henry Dana, 351. Adams, President John, 17. Aliens, Exclusion of. 596, 598, 600. Amendments of U. S. Constitution, 498, 510. Fourth, 361. Fifth, 133, 153, 290, 361. 468, 471, 482, 509, 540. Sixth, 361. Tenth, 125, 164, 310, 524. Eleventh, 616, 632, 634. Twelfth, 498. Thirteenth, 491, 498, 499, 528, 531, 558. Fourteenth, 290, 298, 307, 491, 501, 513, 516, 519, 523, 527, 531, 534, 540. Fifteenth, 502. Articles of Confederation, 86, 127, 163, 323, 480, 505, 555. 591, 622, 639, 640. Compared with Constitution, 30. Government under, 173, 200, 201, 604, 610. Atterbury, Bishop, 375 n. Attorney General, 334, 335. Austria, Emperor of, 168. Baldwin, Justice, 549, 590, 595. Cited, 639. Bank of the United States, 32, 33, 142. Power of Congress to incorporate, 308. Bankruptcy, 217, 405, 406, 408, 410, 432, 433, 438, 439, 448, 450. In England, 446. Bates, Chancellor, 249. Belligerents, 343, 349. Biddle, George W., Constitutional History as Seen in American Law, 491. Bills of Attainder, 372, 383, 387, 403, 440. Bills of Credit, 102, 103, 106. 107, 109-118, 127, 131, 156, 164, 166-169. Legal tender not an essential quality, 105, 128. Prohibition on States to issue, 112. See Legal Tender. Money. Bill of Rights, 469. 470. 539. Black Code, 530. Blackstone. Sir William, 377, 385, 402, 418, 515, 543. Blair, Justice, 615. Blockade, Effect of, 347. Power of President to institute, 342, 348. Relation of neutrals to, 343. Bracton, 605. 813 814 INDEX. Bradley, Justice, 510. Cited, 285, 597, 660. Opinions by, 68, 156, 519, 571. Brewer, Justice, 280, 602. Opinion by, 660. Bridges, 303, 304. Brougham, Lord, 368. Brown, Justice, 100. Bryce, American Commonwealth, 323, 490. Burke, Edmund, 540. Campbell, Justice, 488, 490, 491. Capture, Right of, 343. Carson, The Supreme Court of the United States, 351, 616. Catron, Justice, 55, 219, 275, 350, 488, 489, 490, 491. Census, Power to take, 142. Charges, Regulation of, 291, 293, 294. Chase, Chief Justice,, 254, 371, 394, 500, 510. Cited, 65, 167:^^60. Opinions by, ?6, 57, 119, 552, 570, 654. Chase, Justice, Opinions by, 26, 372. Cherokee Nation, 585. Chicago, 300. Chicago River, 302. Chinese cases, 595. Citizens of United States, 473, 475, 478, 489, 502. Privileges and Immunities of, 54, 477, 497, 504, 507, 508, 509, 529, Distinguished from citizens of the States, 474, 503. See Negro. Civil rights, 467, 472, 479, 518, 526, Clarendon, Lord, 375 n., 388. Cleveland, President, 638. Cllfeord, Justice, 85, 254, 350, 518. 582. Cited, 89. Opinion by, 71. Coasting trade, 187. Coke, Sir Edward, 497, 536. Commerce, 46, 47, 52, 173, 175, 179, 185, 191, 193, 200, 201. 210, 215, 223, 227, 229, 240, 241, 243, 246, 250, 2B3, 255, 259, 267, 270, 272. 275, 276, 302, 312, 528, 546, 665. Concurrent or exclusive control of, 52, 180, 210, 242, 244, 245, 252, 261, 270, 271. Control of Congress over, 179. 188, 205, 210, 213, 220, 232, 240, 244, 245, 255, 261, 266, 298, 303. Control of States over, 215, 232. 254, 270, 275, 278, 280, 304. Foreign commerce, 178. Includes Intercourse, 255, 261. navigation, 175, 177, 188, 234. passenger traffic, 189, 219, 222, 225, 232, 252, 254, 260. transportation, 249, 250, 252-254, 260, 273, 660. Regulation of charges not an interference with, 267, 293. INDEX. 815 Commerce, continued. Internal commerce, 47, 205, 221, 251, 254, 261, 270, 278, 298. Interstate commerce, 178, 186, 249, 252, 253, 260, 261, 265, 269, 271, 285, 286, 660, 661, 664, 666. Common law, 297, 538. Confederate States of America, 146. Conflict of laws, 444. Congress, Powers of, 162, 309, 344, 406, 527, 577, 600. Limitations on, 168, 325. Connecticut, Constitution of, 379, 542. Constitution of United States, 139, 538, 598, 611, 624. Adoption of, 309. Objections to, 39, 362. Source of, 309, 616. Supremacy of, 34, 37, 205, 310, 620. Constitutionality of legislation, 20, 21, 27, 120, 123, 126, 379, 397, 465, 481, 519. Effect of invalidity of part of statute, 98. Presumption in favor of validity, 137, 193, 289. See Judicial Power. Construction of Constitution, 138, 148, 149, 161, 163, 174, 175, 194. 217, 244, 282, 312, 320, 540, 617, 626, 636. Loose construction, 174. Strict construction, 174, 318. of legislative grants, 457, 460. of statutes, 120, 138, 175, 341, 357, 458. Contract, Impairment of obligation of, 121, 133, 150, 152, 153, 164, 376, 395, 401-403, 405, 406, 414, 423, 424, 428, 429, 432, 433, 435* 436, 440, 454, 522. Is a charter a contract, 414, 416, 423, 424, 461, 464. Convention of 1787, 86, 164, 408, 411, 570, 588. Cooley, Thomas M., Constitutional History as Seen in American La'VC. 615. Constitutional Limitations, 83 n., 84 n., 267, 537. On Taxation, 90. Corporations, 419. of one State may do business in another, 258. Liability of foreign corporations, 263. Power of Congress to create, 314, 320, 322. Power of States to tax, 264. Coulter, J., cited, 84. Coxe, Judicial Power and Unconstitutional Legislation, 24. Crime, Punishment of, 141, 148, 317. Currency, Power of Congress to provide, 62, 167. Curtis, Justice, 488, 489, 491. Cited, 537. Opinion by, 235. Cushing, Caleb, 478. Cushing, Justice, 32, 381. Opinion by, 607. 816 INDEX. Dana, R. H., Jr., 350. Daniel, Justice, 219, 246, 487, 489, 491. Cited, 575. Dartmouth College, 413, 416, 422. Dartmouth, Earl of, 416, 417. Davis, Justice, 63, 135, 254, 394. Opinion by, 351. Declaration of Independence, 476, 480. Delaware, Constitution of, 375, 378. Demosthenes, 604. Denio, J., cited, 536. Dillon, Municipal Cdrporations, 83 n. Domicil, 601. Dorr's Rebellion, 647. Due process of law, 80, 498, B35, 537, 540, 541, 542. Dunbar, William H., Article by, 667. Dunmore, Governor, 369. Duvall, Justice, 431, 434, 450. Eleemosynary institutions, 416, 419, 420, 422, 425. Elevator charges, 289, 295. Elizabeth, 603. Ellsworth, Chief Justice, 26 n. Emancipation Proclamation, 499, 557. Embargo, 153. 176. Enemies' property, 348, 350. Error, Writ of, 625, 633. Executive power, 324, 332, 335, 345, 579, 655, 659. Enforcement of by judicial process, 659. Exports, 200. Ex post facto laws, 372, 375, 376, 379, 383, 389, 391, 403, 440. See Retrospective Laws. Expurgatory oath, 390, 391, 393. Federalist, The, 24, 38, 44, 87, 93, 243, 271, 377, 616. Federal Government and the States, 65, 66, 182, 184, 203, 243, 322, S49, 553, 564, 568, 571, 575, 578, 635. Fenwick, Sir John, 375 n. Ferris, 260, 267, 292. Field, Justice, 160, 171, 259, 273, 299, 510, 518, 582, 602. Cited, 276, 596, 601. Opinions by, 260, 299, 324, 381, 564. Fish, Secretary of State, 598. Florida, Acquisition of, 583. Foreign Affairs, 583. See International Relations. Forests of United States, Protection of, 333^ Prance, 383, 386, 481, 529, 638. Freight tax, 246, 247. Fuller, Chief Justice, 602. Opinions by, 92, 270, 645. INDEX. 817 Gage, General, 369. Gallatin, 94. Georgia, Constitution of, 395, 396. Gerry, 165. Gladstone, 95. Gorham, 165. Government of the United States distinct from State governments, 565, 568. extent of its jurisdiction, 257, 660, 666. of limited powers, 21, 83, 113, 125, 310, 320, 617, 631, 660, 666. organization of, 20, 125, 139, 468. supreme in its sphere, 810, 565, 571, 572, 581, 631, 666. Gray, Justice, 273, 280. Cited, 640. Opinions by, 158, 596. Grier, Justice, 55, 219, 488, 490, 491. Cited, 575. Opinions by, 342, 56L Habeas corpus. Writ of, 330, 352, 354, 358, 567. Suspension of, 140, 357, 366, 370. Hale, Lord Chief Justice, 292. Hamilton, Alexander, 24, 87, 93, 271, 3i23, 377, 393, 616. Harbor regulations, 212, 214, 222, 235, 238, 245, 263, 266, 270. Harlan, Justice, 100, 273, 280, 534, 543. Cited, 278. Opinions by, 281, 637. Henry IV, 603. Holmes, Justice ,0. W., cited, 157. Huberus, 446. Hunt, Justice, 259. Hurd, Slavery, 89. Hutchinson, History of Massachusetts, 106. Illinois Territory, 305. Implied powers, 67, 125, 128, 140, 142, 156, 157, 161, 163, 167, 170, S08, 313, 323, 330, 577. Imports, 194, 200, 202, 207. When States may tax, 197, 207, 208. Imposts, 193, 238. Indians, 544, 592, 594, 657. Not a State or nation, 547, 586, 589. Power of Congress over, 546, 548, 551, 586, 591. Indictment by grand jury, 535. Injunction, Government by, 660, 667. Injunction, Writ of, 654, 656, 657, 668, 660, 666, 667. Inspection laws, 181, 183, 194, 199, 213, 221, 227, 270, 274, 281, 284. International relations, 445, 583, 639, 657, 658. insolvency laws. See Bankruptcy. Iredell, Justice, 381, 615. , Opinion by, 29. 818 INDEX. Jackson, Justice, 100. Jay, Chief Justice, 94, 615. Opinion by, 610. Johnson, Justice, 45, 101, 108, 167, 192, 405, 431, 444, 590, 627. Cited, 280, 537. Opinion by, 444. Johnson, President, 500, 558, 652, 653, 654. Johnston, Alexander, 472, 490, 590. Judicial power, 21, 22, 24, 331, 335, 353, 363, 375, 378, 397, 445, 566, 585, 599, 607, 612, 618, 623, 626, 628, 632, 663, 666. Judiciary, Power of to pass upon validity of legislation, 21, 22, 25, 123, 322, 598, 656. to be exercised with great care, 92, 123, 155, 381, 396, 413. relation of Federal and State, 329, 449, 450, 564. Jurisdiction of United States courts, 404, 467, 472, 512, 517, 522, 544, 553, 561, 603, 616, 618, 626, 629, 634, 635, 637, 640, 644, 657. Jury trial, 361, 364, 394, 515. Justice, Department of. See Attorney General. Justice, Establishment of, 132, 611. Kent, Chancellor, 192. Commentaries, 40, 72 n., 90, 494, 536. Kenyon, Lord, 292. Kildare, Earl of, 387. Koszta, Martin, 334, 602. Lamar, Justice, 645. Lancaster, Attainder of Earl of, 368. .Legal tender, 105, 120, 128, 130-132, 136, 145, 146, 152, 154, 155, 167, 169, 170, 376. Acts of 1862, 1863, 1878, 119, 159, 160. Constitutionality of, 125, 130, 135, 137, 144, 155, 160. Necessary and appropriate means of carrying on war, 128, 132, 135, 144, 146. Legislative power, 373, 374, 399, 401, 403, 497, 559. Licenses, 46, 47, 48, 187, 188,- 192, 204. may confer authority, 46, 47. a form of taxation, 48, 263. Lincoln, Attorney-General, 18, 19. Lincoln, President, 499, 558. Liquors, Sale of, 208, 209, 271, 275, 278, 280. Livingston, Justice, 431. Macaulay, 497. Mackintosh, Sir James, 368, 538. Madison, James, 17, 18, 19, 87, 93, 165. Magna Charta, 290, 535, 537, 539. Marcy, Secretary of State, 333. 598, 602. Marshall, Chief Justice, 84, 161, 163, 267, 272, 354, 389, 432, 434, 444. 450. 496, 549. INDEX. 819 Marshall, continued. Cited, 68, 92, 93, 110, 126, 138, 139, 143, 145, 146, 161, 163, 164, 166, 171, 216, 222, 226, 228. 263, 354, 355, 356, 386, 389, 437, 439, 459, 547, 549, 599, 639, 640, 644, 656, 660, 665. Opinions by, 19, 33, 41, 101, 173, 191, 308, 395, 406, 412, 467. 561. 583, 585, 590, 627. Speech in Virginia Convention, 25, 615. Marshals of United States, Powers of, 336. Martial law, 338, 360, 363, 365, 367, 651. Martin Luther, 165. Maryland, Constitution of, 375, 377. Massachusetts, Constitution of, 290, 375, 377. Matthews, Justice, 98, 273. Cited, 274. Opinion by, 534. McLean, Justice, 101, 108, 219, 246, 466, 488, 595. Cited, 306. Opinions by, 108, 219, 488. Meigs, W. M., Article by, 24. Merlin, 602. Merrick, J., 535. Cited, 536. Migration or importation of persons, 183, 189, 227, 232, 233. Militia, Power of Congress over, 217, 338. Miller, Justice, 135, 371, 394, 563. Cited, 516, 640. Lectures on the Constitution, 323, 431, 510. Opinions by, 50, 79, 325, 491, 543. Ministerial duties, 655. Missouri Compromise, 480, 483, 486, 489. Missouri, Constitution of, 381, 386, 388, 390, 392. Money, Contracts to pay, 151, 152. Money, Power of United States to borrow, 41, 43, 166, 312, Power of United States to coin, 127, 149, 150, 170. Paper money issued by colonies, 103, 106, 109. issued by Congress, 106, 127. United States notes, 120, 129. Depreciation in value, 121. See Bills of Credit, Legal Tender. Monopoly, 492, 497. Morris, Gouverneur, 86. Municipal Corporations, 80. National banking associations, 56, 58, 166. Taxes imposed on, 58-60. Naturalization, 217, 477. Navigation, 240, 305, 306. "Necessary and proper" defined, 126, 162, 163, 315, 319. laws, 139, 147, 314, 315. Negro, 475-478, 501, 503, 512. Can he become a citizen, 473, 480; 489. 820 INDEX. Nelson, Justice, 63, 219, 350, 490, 491. Opinions by, 64, 484. Neutrality, 346. North Carolina, Constitution of, 375, 378. Officer, obligation to testify as to his ofiBcial acts, 18. right to his commission, 20. Ordinance of 1787, 132, 304, 486, 487. Original package, 269, 272, 273, 279. Paper Money. See Bills of Credit, Legal Tender, Money. Pardoning power, 324. Parliament of Great Britain, 423, 539, 664. Paterson, Justice, 381. Opinion by, 28. Pennsylvania, Constitution of, 375. Phillimore, 602. Pilots, 240, 241, 244, 245. See Harbor Regulations. Pitt, 95. Police power, 183, 185, 199, 214, 215, 221, 225, 229, 234, 252, 266, 267, 270, 275, 276, 278, 281, 286, 289, 291, 303, 307, 494. Pomeroy, Constitutional Law, 90. Political questions, 46, 62, 97, 107, 146, 171, 346, 548, 559, 562, 578, 596, 597, 599, 600, 602, 637, 638, 639, 647, 650, 652, 655, 657, 658. Political rights, 652. Post-offices and post roads, 255, 318, 660, 661, 666. President, 654. Military powers of, 339, 340, 341, 342, 345, 357. Powers and duties of, 332, 335, 337, 339, 345, 649, 655. Private property, not to be talien without compensation, 133, 380. not to be taken without due process of law, 80, 84. 134, 289, 290. protection of, 482, 483. Prize, Right of, 343. Property, Right of, 380. Public interest in private business, 292, 293, 294, 296. Public purpose, 85. Rawle, Constitution, 90. Raymond, J., 378. Rebellion, 567. financial condition at outbreak, 57. financial measures adopted during, 58. Reconstruction, 558, 559, 562, 652. Redfleld, Law of Railways, 83 n. Reeve, History of English Law, 536. Regulation of charges, 267, 289, 293, 295. Republican government guaranteed to each State, 557, 558, 648, 651. Reserved powers of the States, 67, 68. Retrospective laws, 377, 441, 454. Rhode Island, 369. Rights of life, liberty and pursuit of happiness, 385, 386. INDEX. 821 San Ildefonso, Treaty of, 638, 639. Secession, 554, 556. Sergeant, Constitution, 90. Servitude, Involuntary, 498, 500, 529 Sharswood, Blackstone, 90. Shaw, C. J.. 98, 494. Cited, 535. Slaves and Slavery, 476, 482, 484, 487, 488, 498, 528, 532, 557. Effect of residence in free territory, 483, 485, 488, 489. See Servitude, Involuntary. Slave trade, 227. Smith, Wealth of Nations, 29. South Carolina, Constitution of, 375. Specie payments. Act for resumption of, 159. Standard of value, 440. States of the Union, 554, 561. Position of before adoption of Constitution, 173, 383, 474, 611. Powers of, 290, 309, 373, 401, 406, 407, 428, 468, 474, 506, 617. Restrictions on, 168, 195, 375, 440, 469, 521, 609. Sovereignty of, 65, 577, 603, 608, 621, 632. Suability of, 404, 585, 603, 607, 609, 613, 615, 630, 632, 637, 643. Statutes of limitations, 411, 436, 438. etimson, F. J., Article by, 667. Story, Justice, 118, 220, 431, 444, 450, 590. Cited, 138, 346, 347, 455, 466, 650. Commentaries on the Constitution, 90, 122, 125, 141, 249, 272, 387, 641. Opinions by, 338, 616. Stowell, Lord, cited, 345. Strafford, Earl of, 375 n. Strong, Justice, 299. Cited, 170. Opinions, 136, 246, 511. Suffrage, Right of, 478. Swayne, Justice, 135, 371, 394, 510. Cited, 664, 665. Opinions by, 85, 254, 563. Swift's Digest, 542. Taney, Chief Justice, 276, 350, 489, 490. Cited, 51, 55, 74, 291, 356, 487, 508, 5,48, 559, 566, 568. Opinions by, 204, 451, 472, 647. Taxation, 26, 33, 34, 79, 80, 83, 84, 86, 147, 170, 180, 181, 192, 193, 196, 197, 199, 203, 206, 207, 214, 221, 223, 227, 228, 229, 233, 237, 246, 247, 250, 259, 263, 264, 269, 312, 459. direct, 26-28, 30, 32, 60, 86, 88, 89, 90, 93, 94, 99. duties, 27, 193, 197, 199, 221, 226. Federal power of, 38, 39, 61. in aid of inspection laws, 75. in aid of private enterprises, 81. indirect, 27, 29. 822 INDEX. Taxation, continued. must be for public purposes, 84. of agencies and contracts of United States by the States, 33, 36, 37, 40, 41, 43, 44, 54, 64, 166, 169, 322. of exports by States, 51, 52, 195, 238, 248. of incomes, 95, 97. of national banks, 58-60. of passenger traffic by States, 50, 51. of State agencies by United States, 64, 95. of State banks, 56, 63, 167. of State franchises by United States, 61. of tonnage by States, 71-73, 76, 238. State power of, 35, 36, 39, 75, 196, 197, 224, 247, 251, 264. Telegraph, 256. Territory of United States, 481, 488, 547, 584. Power to acquire, 583. Test oath, 382, 384, 390. Texas, Constitution of, 656. Thayer, J. B., Articles by, 24, 157. Cases on Constitutional Law, 24, 490. Thompson, Justice, 45, 101, 108, 118, 204, 444, 450, 466, 590. Tonnage duties, 76, 221, 237. Treaty-making povi^er, 583. Trimble, Justice, 444, 450. Union, The, 555, 562, 630, 661, Valuation of real and personal property in United States in 1890, 99. Vattel, 344, 445, 593, 602. Waite, Chief Justice, 273. Cited, 517. Opinions by, 255, 289. "War, 312, 338, 342, 343, 363, 566, 583, 597. Civil War, 344, 349, 557. Washington, Justice, 431, 450, 595. Cited, 454, 505. Opinion by, 432. Wayne, Justice, 55, 246, 371, 487, 489, 490, 491. Opinion by, 231. Webster, Noah, 355, 541. Weights and measures, 154. Wharton, Digest of International Law, 598, 602. White, Justice, 100. Wilson, Justice, 32, 615. Opinion by, 603. Speech in Pennsylvania Convention, 25. Works, 157, 323. Wirt, William, 478. Woodbury, Justice, 219. Wooddeson, 377. INDEX TO SUPPLEMENT. Alaska, annexation of, 761, 786. Annexation of territory, 751, 754, 755, 763, 770, 772, 779. 785, 788. 789 803, 808. Anti-TruBt Act (Sherman Act), 705. Baldwin, Justice, quoted, 742. Banks, taxation of, 682. Benton, Thomas H., on the Bred Scott case, 781, 782. Bill of Rights of the Constitution of the United States, 800, 807, 808, 809. Bradley, Justice, awoted, 674, 719, 744, 808. Brew«r, Justice, opinions by, 672, 737. Brown, Justice, opinions by, 749, 768, 792. quoted, 807, 808. Buchanan, Secretary of State, quoted, 759, 799. California, annexation of, 753, 759, 788. government of, 755, 759, 799. Castine, Maine, occupation of by Great Britain in War of 1812, 723, 750. Cattle, transportation of diseased, 705. Chase, Chief Justice, -quoted, 676. Chinese Exclusion Acts, 711, 733, 734. Chinese, exclusion of from «Itlzens-hip, 731, 734. Chinese in the United States, 732, 735, 797. Citizenship in a State of the United States, 718. Citizenship in England, 712, 715, 729. Citizenship in English Colonies, 713. Citizenship in France, 713, 714. Citizenship in newly-acquired territory, 769, 771, 772, 773, 777, 778, 779, 786, 787, 788, 804, 805. Citizenship in the United States, 711, 715, 717, 718, 719, 722, 726, 728, 729, 730, 733, 769, 778, 785. Citizenship under the Roman law, 713. Civil Rights Act of 1866, 716, 722, 726. Code, Napoleon, 714. Commerce, inter-state, defined, 699, 700. Commerce, inter-state, regulation, v. prohibition, 701, 704, 705. 823 824 INDEX TO SUPPLEMENT. Commerce, regulation of inter-state, 687, 689, 691, 692, 697, 698, 699, 700, 707, 708. Common law, 674, 712, 720, 727, 800. Congress, representation in, 711. Constitution of tlie United States, interpretation of, 673, 674. Construction, rules of, 711, 776, 795, 796. Controversies between two States, 740, 742, 743, 746. Courts of the United States, jurisdiction of, 738, 740, 741, 742, 743. Curtis, Justice, quoted, 805, 808. Davis, Justice, quoted, 796. Day, Justice, opinion by, 802. Dingley act, 749. Dispensary law of South Carolina, 671, 677, 680. Eleventh Amendment, 741, 744. Esher, Lord, quoted, 797. Federal government, jurisdiction of, 672, 674, 675, 699, 703. Federal government, relation of to the States, 672, 675, 676, 679, 688, 689, 696. Field, Justice, quoted, 692, 719. Fifteenth Amendment, 712. Fifth Amendment, 795, 801. First Amendment, 783. Fish, Secretary of State, quoted, 727, 728. Florida, annexation of, 757, 773, 785, 804. government of, 758, 804. Foraker act, 749, 761, 769, 791, 811. Foreign v. domestic territory, 749, 750, 751, 752, 753, 755, 757, 758, 761, 762, 764, 765. Fourteenth Amendment, 687, 711, 712, 716, 717, 718, 721, 723, 725, 727, 730, 733, 769. Gallatin, Secretary of the Treasury, quoted, 756, 757. Gray, Justice, opinion by, TIO. quoted, 674, 676, 683. Harlan, Justice, opinions by, 686, 698. " quoted, 722. Hawaii, annexation of, 774, 792, 793, 797. government of, 793, 794, 798, 799, 801. history of, 794. status of, 801. Hoar, Attorney-General, quoted, 726. INDEX TO SUPPLEMENT. 825 Indians, citizenship of, 721, 722. relation of to United States, 724. Indictment by grand jury, in Hawaii, 792, 800. right to, 795, 807. Inheritance taxes, 681, JefEerson, on the purchase of Louisiana, 770, 771. Johnson, Andrew, veto of Civil Rights Act by, 722. Judicial power of the United States, 738, 740, 741, 742, 743. Liquor, laws regulating sale of, 671, 672, 677, 693, 706. Lotteries, 700. Lottery tickets as subjects of commerce, 699, 701, 708. Lottery tickets, law for the suppression of carriage of, 697. Louisiana, annexation of, 752, 755, 769, 770, 771, 785. government of, 756, 773. Mandamus for the payment of an official salary, 745. Marshall, Chief Justice, quoted, 674, 678, 696, 701, 705, 709, 726, 724, 725, 734, 741, 742, 749, 762, 763, 776, 785, 790, 803. Matthews, Justice, quoted, 674, 691, 732. McCullough, Secretary of the Treasury, quoted, 761. Miller, Justice, quoted, 718, 719. Mississippi river opened to American commerce, 770. Missouri Compromise, 775, 780. Municipal corporations, distinction between their public and iprivate functions, 683, 684, 685. Naturalization Act (English) of 1870, 714. Naturalization in the United States, 715, 724, 725, 726, 733, 734. Negroes, citizenship of, 734, 778. Nelson, Justice, quoted, 676. Newlands, resolution, 792, 795, 798, SOI. North Carolina Railroad Co., 736, 739, 747. Nott, Chief Justice of Court of Claims, quoted, 679-680. Oleomargarine, law of Massachusetts regulating the sale of, 686, 689, 697. Oleomargarine, law of New York, regulating the sale of, 694. Oleomargarine, law of United States regulating sale of, 687, 688, 689. Oleomargarine, na*ure of, 689, 694. "Original package" decision, 693, 706. 826 INCEX TO 6UPPLEMENT. PecKham, Justice, quoted, 743. Philippines, annexation of, 786, 805, government of, 807, 811, 812. status of, 792, 805,. 806. Police power, 677, 691, 692, 694, 695, 696, 703. Porto Rico, annexation of, 748, 768, 786. military occupation of, 749. status of, 749, 768, 786, 790, 791, 792. taxation in, 788, 791. Public ownership, 678, 680. Seward, Secretary of State, quoted, 761. Sherman Anti-Trust Act, 705. Shiras, Justice, quoted, 740. Sixth Amendment, 795, 801, 806. Slavery in the United States, 718, 769, 775, 7S1. States, admission of to the Union, 789. Story, Justice, quoted, 723, 749. Succession tax. See Inheritance tax. Swayne, Justice, quoted, 719, 795. Tampico, Mexico, occupation of by the United States, 750. Taney, Chief Justice, quoted, 673, 717, 745, 751, 760, 763, 778, 779. Tariif upon imports from the Insular Dependencies, 768, 791. Taxation of Federal agencies by the States, 676, 679, 681, 682. Taxation of State agencies by the Federal government, 676, 679, 680, 681, 683, 685. Taxation, provisions of the Constitution concerning, 674, 675, 679, 680. Tenth Amendment, 703. Territory, power to annex, 751, 754, 755, 763, 770, 772, 779, 785, 788, 789, 803, 808. • power to govern, 764, 775, 777, 783, 785, 787, 800, 801, 802, 803, 804, 805, 808, 809, 810. when it becomes part of the United States, 769, 772, 774, 781, 782, 784, 801, 805, 806. Texas, annexation of, 759. Thirteenth Amendment, 718, 769, 783. Thompson, Justice, quoted, 796. Treaty-making power, 762. Treaty of Paris (1898), 748, 768. Treaty of San Ildefonso, 770. Trial by jury in Hav/aii, 795. in the Philippines, 802. right of, 795, 802, 805, 806, 807, 810. INDEX TO SUPPLEMENT. 827 "Uniformity clause" of the Constitution, 768, 771, 772, 773, 774, 783, 784, 791. Van Syckel, Justice (New Jersey Supreme Court) quoted, 730. Waite, Chief Justice, quoted, 720, 764. Walker, Secretary of the Treasury, quoted, 759. War power, 791. Wayne, Justice, quoted, 753, 754, 757, 780. Webster, Secretary of State, quoted, 731. Western North Carolina Railway Co., 736. White, Justice, quoted, 784, 806, 808. Wirt, Attorney General, quoted, 758.