JOHN MARSHALL COMPLETE CONSTITUTIONAL DECISIONS Edited with ANNOTATIONS HISTORICAL, CRITICAL AND LEGAL By JOHN M. DILLON Of the New York Bar ILLUSTRATED WITH PORTRAIT AND FAC-SIMILES CHICAGO CALLAGHAN 0 COMPANY 1903 t"I Noc~ a 0 z z 0 0 z 0 0 -L Co 0 PREFACE. An eminent philosophic historian and statesman, whose lamented death occurred while this volume was passing through the press, has the following pregnant observations which are distinctly applicable to our Constitution, to our national experience, and to the permanent and increasing value of Chief Justice Marshall's constitutional labors. "An appetite for organic change," says Lecky,' "11is one of the worst diseases that can affect a nation. All real progress, all sound national development, must grow out of a stable, persistent national character, deeply influenced by custom and precedent and old traditioual reverence, habitually aiming at the removal of practical evils and the attainment of practical advantages, rather than speculative change. Institutions, like trees, can never attain their maturity or produce their proper fruits if their roots are perpetually tampered with. In no single point is the American Constitution more incontestably superior to our own than in the provisions by which it has so effectually barred the path of organic change that the appetite for such change has almost passed away."~ 1Democracy and Liberty, 1, 153, 154. Preface* iv The Constitution of the United States is the only political bond of union of the American Republic. John Marshall is the master-builder of the Constitution. By universal consent his work in this respect stands unrivaled and supreme. Conclusive proof of this, if proof were necessary, is found in the Centennial Celebration throughout the United States in 1901 of Marshall's appointment as Chief Justice of the Supreme Court. The record of this unique and extraordinary event is comprised in three commemorative volumes'I which are referred to throughout the following work as the "1Marshall Memorial." The present -volume contains in full every decision on constitutional points of Chief Justice Marshall. With the additions of the Thirteenth to Fifteenth Amendments, which grew out of the Civil War of 1861-1865, the Constitution of to-day is the Constitution of Marshall's time, and it means to-day just what Marshall's decisions authoritatively declared and established it to mean. The settled judgmelit of the world is chat this Constitution is the most remarkable political document ever fashioned by the mind of man. No thorough knowledge of it is possible without a, careful study of I oh Marshall, Life, Character and Judicial Services, as Portrayed in the Centenary and Memorial Addresses and Proceedings throughout the United States on Marshall Day, 1901, and in the classic orations of Binney, Story, Phel ps, Waite and Rawle. Compiled and Edited with an Introduction by John F. Dillon. Illus. trated with Portraits and Fac-simile; in Three Volumes, 1903. V Preface.. Mfarshall's decisions. This may seem to be a strong expression, but it is absolutely true. To all persons, therefore, lay or professional, who feel an interest in the science of law, of jurisprudence or of government, and in the workings of republican institutions for over a century on a theater of more than imperial extent and grandeur and on the largest scale ever exhibited to mankind, the opinions here published have an intrinsic importance distinctively and exclusively their own. Of few works can it truly be affirmed that they are equally adapted to popular and professional use. But this is undeniably true of Chief Justice Marshall's constitutional judgments. Many of the greatest and most luminous of his constitutional opinions contain scarcely a reference to adjudged cases or to the authority of precedents, for there were none, and the conclusions reached do not depend upon technical learning or discussions. They may be fully understood by any intelligent person. As Dr. Johnson would have phrased it, each decision is a colossus hewn from a rock, not figures carved on cherry stones; and on reading these opinions one has the satisfaction of seeing each successive stroke of the Titan which gradually evolved the massive andl original work that he beholds. In order that the volume may be more useful, a statement of the exact points decided has been prefixed to each case. MIVr. Justice Curtis, one of the ablest judges Preface, vi who ever held a place on the Supreme Bench of the United States, edited the Decisions of the Supreme Court. H-e appreciated the vital distinctioii between the points decided by the court and the arguments in support of the decision, and he embodied the points decided in headnotes, which are remarkable for their accuracy and conciseness and which have the added value of containing, just what this learned and careful judge regarded as the precise propositions actually determined by the court. Mr. Justice Curtis's head-notes have, by the courtesy of Messrs. Little, Brown & Co., been adopted by the Editor, and they appear at the head of each of the Supreme Court opinions here published. To insure accuracy these opinions have been carefully compared with the original official reports. It so happens that nearly every one of the great cases decided by Chief Justice Marshall has an interesting contemporaneous and subsequent history of its own, which forms an appropriate background and settingo to the case. In the light of this history the opinion of the Chief Justice will be better understood and read with greater interest. This history together with such observations historical, general or critical as seemed proper precedes each case. The annotations at the foot of each opinion indicate how far the case itself has been subsequently referred to or applied; and thu's this volume is intended to exhibit the present state of Constitutional Law on all VUi Preface. the great and essential provisions of the Constitution which were dealt with by Chief Justice Marshall. Marshall's constitutional labors were the subject of orations and addresses on Marshall Day at the National Capital and in thirty-seven States and Territories, in which the opinions of Marshall are examined and reviewed by eminent judges, lawyers, statesmen and scholars. The present is therefore a companion volume to the "11Marshall Memorial; 11 and among other features of interest or convenience it contains in the notes references to the "Marshall Memorial" in which will be found whatever was said on Marshall Day concerning the constitutional opinions of the great Chief Justice. The Editor desires to express his obligation to the Honorable John F. Dillon, who edited the Marshall Memorial Volumes, for the prefatory notes to the opinions here given; for the other notes and editorial work the present Editor is responsible. He also gratefully acknowledges valuable assistance from his friend Mr. George S. Clay in the preparation and issue of this volume. J. M. D. New York, December, 1908. TABLE OF CASES AND CONTENTS. WILLIAM MARBURY V. JAMES MADISON: Power and duty of the courts to declare acts of Congress in conflict with the Constitution void.........................1 UNITED STATES V. FISHER AND OTHERS, ASSIGNEES OF BLIGHT, A BANKRUPT: Congress may constitutionally give the United States a preference in bankruptcy over other creditors............42 HEPBURN AND DUNDAS V. ELLZEY: The District of Columbia is not a State within the meaning of the Constitution......................................... 48 Ex PARTE BOLLMAN AND SWARTWOUT: The American law of treason.................51 UNITED STATES V. AARON BURR: The American law of treason...........................82 BANK OF THE UNITED STATES V. DEVEAUX AND OTHERS: Federal jurisdiction over corporations..................... 166 UNITED STATES V. JUDGE PETERS: Sanctity and force of judgments of the Federal courts-Their inviolability by the States................................ 180 FLETCHER V. PECK: The Constitution of the United States forbids a State from impairing its own contracts or grants of property by subsequent legislation......................................... 194 UNITED STATES V. BEVANS: The admiralty and maritime jurisdiction of the Federal courts under the Constitution and the Crimes Act of 1790.. 218 STURGES U CROWNINSHIELD: Respective constitutional powers of the General and State governments as to bankrupt and insolvent laws - The authority of the States is subject to the contract-clause of the Federal Constitution......................................e226 Table of Cases and Contents. X M'CULLoOCHV. STATE OF MARYLAND AND OTHE'.RS: National and State sovereignty - Con gress has the constitutional power to charter a bank as a fiscal agency of the General Government - The States have no power to tax its operations or franchises without the consent of Congress... 252 TRUSTEES OF DARTMOUTH COLLEGE V. WOODWARD: Constitutional sanctity of contracts - Their inviolability by the States...........................................- 299 LOUGHBOROUGH vn BLAKE: Constitutional power of Congress to levy direct taxes throughout the United States...........................839 OWINGS V. SPEED AND OTHERS: Date when Constitution took effect - Contract-clause not retroactive...........................................8352 COHENS V. STATE OF VIRGINIA: Constitutional supremacy of the Supreme Court over judgments of State courts denying Federal rights............. 357 GIBBONS V. OGDEN: The national supremacy over foreign and interstate commerce.....e.. e*.....e.....00..........0*......... 06...421 OSBORN v. BANK OF UNITED STATES: State laws taxing the franchises or functions of Federal instrumentalities unconstitutional - The enforcement of such laws may be enjoined by the Federal courts.............. 468 BANK OF UNITED STATES V. PLANTERS' BANK: Constitutional scope of Federal judicial power over corporations in which a State is interested...................... 512 BROWN V. MARYLAND: Paramount power of Congress to regulate commerce - The States cannot tax commerce nor require an importer to take a license and pay a revenue license fee therefor before he can sell the imported article in the original package.... 520 OGDEN V. SAUNDERS: Constitutional validity of State insolvent and bankrupt laws 549 AMERICAN INSURANCE COMPANY V. CANTER: The United States has the constitutional power to acquire territory by conquest or treaty, and Congress, subject to the Constitution, may provide for the government of such territory during the territorial condition..................0.. 586 xi xi Tabke of Cases and Contents. WESTON V. CITY OF CHARLESTON: The States have no power to tax United States bonds or stocks............................................... 604 CRAIG V. STATE OF MISSOURI: The issue by a State of paper money on the credit of the State is the emission of "bills of credit," and violates the Constitution of the United States.........0a *............... 617 PROVIDENCE BANK v. BILLINGS AND PITTMAN: Taxation by a State of corporations chartered by it, where there is no express contract for exemption from taxation, does not violate the contract-clause of the Federal Constitution................................................ 644 CHEROKEE NATION v. GEORGIA: Constitutional relation between the General Government, the several States of the Union, and the Indian tribes - National authority supreme - Jurisdiction of the Supreme Court............................................... 655 WORCESTER v. GEORGIA: The National authority over Indian tribes as against the States is supreme and exclusive........................ 680 BARRON v. BALTIMORE: The fifth amendment of the Constitution as to the power of eminent domain applies only to the United States and has no application to the several States.....................- 724 BRIG WILSON V. UNITED STATES: The power of Congress to regulate commerce extends as well to navigation and vessels as to cargoes................. 736 UNITED STATES V. MAURICE AND OTHERS: Respective powers of Congress and the President as to the creation and appointment to offices of the United States... 741 CHRONOLOGICAL DATA.................................748 LIST OF CHIEF JUSTICES OF THE UNITED STATES............... 750 LIST OF ASSOCIATE JUSTICES OF THE UNITED STATES.......751 LIST OF ATTORNEYS-GENERAL OF THE UNITED STATES..... 752 LIST OF REPORTERS OF THE SUPREME COURT.................. 752 AUTHORS AND WORKS CITED IN THIS VOLUME............... 753 CASES CITED IN THIS VOLUME......................... 756 INDEX TO THIS VOLUME...................................... 763 ILLUSTRATIONS. PORTRAIT OF MARSHALL - Fronhtbiece The frontispiece of the present volume is engraved by Gutekunst of Philadelphia, from the celebrated Inman portrait, generally regarded as the most satisfactory of all the portraits of the Chief Justice. The portrait was painted at the request of the Bar Association of Philadelphia, and the original now hangs in the rooms of the Law Association in that city. It represents the Chief Justice in his later life. The interesting proceedings of the Bar Association of Philadelphia which resulted in the production of this portrait, and other matters concerning it, will be found in the Marshall,Memorial, Volume III, pages 430-433. FACSIMILE OF THE LAST PAGE OF THE MSS. OPINION OF CHIEF JUSTICE MARSHALL IN WORCESTER V. GEORGIA -....683 FACSIMILE OF LETTER OF CHIEF JUSTICE MARSHALL TO RICHARD PETERS, THE REPORTER, CONCERNING THE OPINION IN WORCESTER V. GEORGIA.-.......M -683 CONSTITUTIONAL OPINIONS OF CHIEF JUSTICE MARSHALL. John Marshall was nominated as Chief Justice of the United States by President Adams on the 20th, unanimously confirmed by the Senate on the 27th, and commissioned on the 31st of January, 1801. On the day Marshall took his seat as Chief Justice, February 4, 1801, he addressed a letter to President Adams in which he acknowledges the honor conferred on him and concludes by saying that he will enter immediately on the duties of the office and hopes never to give occasion to the President to regret having made the appointment. The first important constitutional question after Marshall's accession to the bench came before the court in the case of William Marbury v. James Madison. February Term, 1803. [1 Oranch's Reports, 137-180.] The decision of the Chief Justice is universally regarded as the substantial foundation of the distinctive constitutional law of this country. The propositions of law decided in this case are thus 1 Marshall's Constitutional Opinions. 2 stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: An act of Congyress repugnant to the Constitution is not law. When the Constitution and an act of Congress are in conflict, the Constitution must govern the case to which both apply. Congress cannot confer on this court any original jurisdiction. To issue a writ of mandamus, requiring a Secretary of State to deliver a paper, would be an exercise of original jurisdiction not conferrible by Congress, and not conferred by the Constitution on this court. The thirteenth section of the Judiciary Act is inoperative, so far as it attempts to grant to this court power to issue writs of mandamuts in classes of cases of original jurisdiction, not conferred by the Constitution on this court. Briefly stated, the facts of the case are these: Toward the end of Adams' term as President he appointed a number of justices of the peace for the District of Columbia, which the Senate confirmed. Commissions to these officers, among them Marbury, had been made out, signed by the President, as the Constitution requires, sealed with the seal of the United States, and were ready for delivery, but remained undelivered in the office of the Secretary of State at the time Jefferson became President. The office was not one to which the President's power of removal extended. Jefferson's opinion was that the appointment was incomplete until consummated by delivery of the commission, and he forbade Madison, who was his Secretary of State; to deliver the commission to Mdarbury.' 1 Jeffera-on's Writings (Ford), X, 230; Marshall Memorial, 1, 3059. Marbury v. Madison. Marbury contended that having been appointed by the President, confirmed by the Senate, and his commission signed and sealed, the appointment was complete and vested in him a legal right to the office, and that it was a violation of this right to withhold the commission.1 Acting upon this theory, Marbury, at the December term, 1801, of the Supreme Court, by his counsel moved the court for a rule to Madison, Secretary of State, calling upon him to show cause why a mandamus2 should not issue, commanding him to deliver to said Marbury his commission. The rule was granted and served; but no cause was shown by Madison. A mandamus was then moved for. Because of its great importance we give the opinion of the Chief Justice at length, although one of the propositions discussed or decided, namely, that the commission was legally complete when the seal of the United States had been affixed to it by the Secretary of State, and that to withhold it was the violation of a positive legal right, is not strictly a constitutional question.' 1 Marshall Memorial, I, 358, 359. 2 A rule to show cause why a mandamus shall not issue is, in other words, a notice from the court calling upon the person to whom it is sent to make known to the court any reason, if he have any, why he should not be positively required to do some desired thing. The writ is called a mandamus, from its first word, meaning we command. 3 The court was constituted as follows: JOHN MARSHALL, Chief Justice. WILLIAM CUSHING, ] WILLIAM PATERSON, SAMUEL CHASE, Justice& B3USHROD WASHINGTON, ALFRED MOORE, 9 Marshall's Constitutional Opinions.4 Opinion. MARSHALL, Chief Justice. At the last term,' on the affidavits then read and fited 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 comumission 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 mnandamus. The peculiar delicacy of 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 principles on which the opinion to he given by the court is f ounded. These principles have been, on the side of the applicant, very ably argued at the bar. In rendering the opinion of the court there will be some departure in form, though not in substance, from the points stated in that argument. In the order in which the court has viewed this sub' The last term was that of December, 1801, but between that term and the August term the Judiciary Act was amended, the August term abolished, and the sitting of the Supreme Court was suspended for fourteen months. For a full review of the political conflict which brought about the amendment of the Judiciary Act, the abolishing of the August term of the Supreme Court of the United States and the appointment of the "1midnight judges " by President Adams, which appointment gave rise to the celebrated case now considered, see McMaster, Hist. of People of U. S., 11, 532, 533; 111, 164, 165; also Marshall Memorial, 1, 430, 431. The volumes of proceedings and addresses throughout the United States on February 4, 1901, the centenary of Marshall's appointment, known as "1Marshall Day," edited by John F. Dillon and styled "41John Marshall, Life, Character and Judicial Services," published by Callaghan & Company, Chicago, 1903, are referred to in the present publication as the " MARSHALL MEMORIAL." 5 ~Marbury~ v. Madison. ject, the following- questions have been considered and decided: 1st. Has the applicant a right to the corn- Questions stated. mission he demands? 2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? 3d. If they do afford him a remedy, is it a matndamrrus issuing from this court? The first object of inquiry is,1st. Has the applicant a right to the commission he demands? His right originates in an act of Congress, passed in February, 1801, concerning the District of Columbia. After dividing the district into two counties, the eleventh section of this law enacts "1that there shall be appointed, in and for each of the said counties, such number of discreet persons to be justices of the peace as the President of the United States shall, from time to time, think expedient, to continue in office for five years." It appears from the affidavits that, in compliance with this law, a commission for William Mlarbury, as a justice of peace for the county of Washington, was signed by John Adams, then President of the United States; after which the seal of the United States was affixed to it; but the commission has never reached the person for whom it was made out. In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property. Marshall's Constitutional Opinions. G President's power of The second section of the second arappointment of certain officers under article2, tidle of the Constitution declares that section 2, of the Constitution of the United "64the President shall nominate, and, by States. and with the advice and consent of the Senate, shall appoint, ambassadors, other public ministers, and consuls, and all other officers of the United States whose appointments are not otherwise provided for." The third section declares that "he shall commission all the officers of the United States." An act of Congress directs the Secretary of State to keep the seal of the United States, "1to make out, and record, and affix the said seal to, all civil commissions to officers of the United States, to be appointed by the President, by and with the consent of the Senate, or by the President alone; provided, that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States." These are the clauses of the ConstituClauses of the Constitution affecting the tion and laws of the United States which power of appointment affect this part of the case. They seem to contemplate three distinct operations: 1st. The nomination. This is the sole act of the President, and is completely voluntary. 2d. The appointment. This is also the act of the President, and is also a voluntary act, though it can only be performed by and with the advice and consent of the Senate. 3d. The commission. To grant a commission to a person appointed might, perhaps, be deemed a duty enjoined by the Constitution. "He shall," says that instrument, 4 commission all the officers of the United States." The acts of appointing to office, and commissioning the person appointed, can scarcely be considered as one and Marbury v. Madison. the same; since the power to perform them is given in two separate and distinct sections of the Constitution. The distinction between the appointment and the commission will be rendered more apparent by adverting to that provision, in the second section of the second article of the Constitution, which authorizes Congress "to vest by law 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; " thus contemplating cases where the law may direct the President to commission an officer appointed by the courts, or by tVhe heads of departments. In such a case, to issue a commission would be apparently a duty distinct from the appointment, the performance of which, perhaps, could not legally be refused. Althoug~h that clause of the Constitution which requires the President to commission all the officers of the United States may never have been applied to officers appointed otherwise than by himself, yet it would be difficult to deny the legislative power to apply it to such cases. Of consequence the constitutional distinction between the appointment to an office and the commission of an officer who has been appointed remains the same as if, in practice, the President had commissioned officers appointed by an authority other than his own. It follows, too, from the existence of this distinction, that, if an appointment was to be evidenced by any public act other than the commission, the performance of such public act would create the officer; and, if he was not removable at the will of the President, would either give him a right to his commission, or enable him to perform the duties without it. Marshall's Constitutional Opinions. These observations are premised solely for the purpose of rendering more intelligible those which apply more directly to the particular case under consideration. This is an appointment made by the essary to complete the President, by and with the advice and appointment to office. consent of the Senate, and is evidenced by no act but the commission itself. In such a case, therefore, the commission and the appointment seem inseparable; it being almost impossible to show an appointment otherwise than by proving the existence of a commission. Still, the commission is not necessarily the appointment, though conclusive evidence of it. But at what stage does it amount to this conclusive evidence? The answer to this question seems an obvious one. The appointment, being the sole act of the President, must be completely evidenced when it is shown that he has done everything to be performed by him. Should the commission, instead of being evidence of an appointment, even be considered as constituting the appointment itself,-still, it would be made when the last act to be done by the President was performed, or, at furthest, when the commission was complete. The last act to be done by the President is the signature of the commission. He has then acted on the advice and consent of the Senate to his own Idem. nomination. The time for deliberation has then passed. He has decided. His judgment, on the advice and consent of the Senate concurring with his nomination, has been made and the officer is appointed. This appointment is evidenced by an open, unequ:vocal act; and being the last act required from the person making it, necessarily excludes the idea of its being, so far as 9 Marbury v. Madison. respects the appointment, an inchoate and incomplete transaction. Some point of time must be taken when the power of the executive over an officer not removable at his will must cease. That point of time must be when the constitutional power of appointment has been exercised. And this power has been exercised when the last act required from the person possessing the power has been performed. This last act is the signature of the commission. This idea seems to have Signature of President prevailed with the Legislature whe completes the appointment, affixing the seal the act passed converting the Depart- completes the commission ment of Foreign Affairs into the Department of State. By that act it is enacted that the Secretary of State shall keep the seal of the United States, "and shall make out and record, and shall affix the said seal to, all civil commissions to officers of the United States to be appointed by the President; " "provided, that the said seal shall not be affixed to any commission before the same shall have been signed by the President of the United States; nor to any other instrument or act without the special warrant of the President therefor." The signature is a warrant for affixing the great seal to the commission; and the great seal is onty to be affixed to an instrument which is complete. It attests, by an act supposed to be of public notoriety, the, verity of the Presidential signature. It is never to be affixed till the commission is signed, because the signature, which gives force and effect to the commission, is conclusive evidence that the appointment is made. The commission being signed, the subsequent duty of Marshall's Constitutional Opinions. 1 10 the Secretary of State is prescribed by law and not to to be guided by the will of the President. He is to affix the seal of the United States to the commission and is to record it. This is not a proceeding which may be varied, if the judgment of the executive shall suggest one more eligible; These exact steps are but is a precise course accurately accurately marked out mre u ylw n st esrcl and must be strictly mre u ylw n st esrcl pursued. pursued. It is the duty of the Secretary of State to conform to the law; and in this he is an officer of the United States, bound to obey the laws. He acts, in this respect, as has been very properly stated at the bar, under the authority of law, and not by the instructions of the President. It is a ministerial act which the law enjoins on a particular officer for a particular purpose. If it should be supposed that the solemnity of affixing the seal is necessary not only to the validity of the commission, but even to the completion of an appointment, still, when the seal is affixed the appointment is made, and the commission is valid. No other solemnity is required by law; no other act is to be performed on the part of government. All that the executive can do to invest the person with his office is done; and unless the appointment be then made, the executive cannot make one without the co-operation of others. After searching anxiously for the principles on which a contrary opinion may be supported, none have been found which appear of sufficient force to maintain the opposite doctrine. Such as the imagination of the court could suggest have been very deliberately examined, and after allowing, them all the weight which it appears possible to give 11 11 Marb ury v. Madison. them, they do not shake the opinion which has been formed. In consideringm this question, it has been conjectured that the commission may have been assimilated to a deed, to the validity of which delivery is essential.' This idea is founded on the supposition that the commission is not merely evidence of an appointment, but is itself the actual appointment; a supposition by no means unquestionable. But for the purpose of examining this objection fairly, let it be conceded that the principle claimed for its support is established. The appointment being, under the Constitution, to be made by the President personally, the delivery of the deed of appointment, if necessary to its completion, must be made by the President also. It is not necessary that the delivery should be made personally to the grantee of the office; it never is so made. The law would seem to contemplate that it should be made to the Secretary of State, since it directs the Secretary Why delivery to apto afi h elto tecmmsinafe opoineenot essential to affi thesea thecommssin WJ~I cmpltion of appointit shall have been signed by the Presi- ment. dent. If, then, the act of livery be necessary to give validity to the commission, it has been delivered when executed and given to the Secretary for the purpose of being sealed, recorded, and transmitted to the party. But in all cases of letters patent certain solemnities are required by law, which solemnities are the evidences of the validity of the instrument. A formal delivery to the person is not among them. In cases of commissions, the sign-manual of the President, and the seal of the 1 For Jefferson's contention concerning delivery, see Jefferson's Writings (Ford), XC, 230; Marshall Memorial, 1, 359. Marshall's Constitutional Opinions. 1 12 United States, are those solemnities. This objection, therefore, does not touch the case. It has also occurred as possible, and barely possible, that the transmission of the commission, and the acceptance thereof, might be deemed necessary to complete the right of the plaintiff. The transmission of the commission is a practice directed by convenience, but not by law. It cannot, therefore, be necessary to constitute the appointment, Ie.which must precede it, and which is the mere act of the President. If the executive required that every person appointed to an office should himself take means to procure his commission, the appointment would not be the less valid on that account. The appointment is the sole act of the President; the transmission of the commission is the sole act of the officer to whom that duty is assigned, and may be accelerated or retarded by circumstances which can have no influence on the appointment. A commission is transmitted to a person already appointed; not to a person to be appointed or not, as the letter inclosing, the commission should happen to get into the post-office and reach him in safety, or to miscarry. It may have some tendency to elucidate this point to inquire whether the possession of the original commission be indispensably necessary to authorize a person appointed to any office to perform the duties of that office. If it was necessary, then a loss of the commission would lose the office. Not only negligence, but accident or fraud, fire or theft, might deprive an individHypothetical cases putuaof Tscacse to prove that delivery ulo his ofic.In sc acse~ preis not necessary. sume, it could not be doubted but that a copy from the record of the office of the Secretary of State would be, to every intent and purpose, equal to the 1~)Marbuary v. Madiso n. origcinal. The act of Congress has expressly made it so. To give that copy validity it would not be necessary to prove that the original had been transmitted and afterwards lost. The copy would be complete evidence that the origoinal had existed, and that the appointment had been made, but not that the original had been transmitted. If. indeed, it should appear that the original had been mislaid in the office of State, that circumstance would not affect the operation of the copy. When all the requisites have been performed which authorize a recording, officer to record any instrument whatever, and the order for that purpose has been given, the instrument is, in law, considered as recorded, although the manual labor of inserting it in a book kept for that purpose may not have been performed. In the case of commissions the law orders the Secretary of State to record them. When, therefore, they are sig~ned and sealed, the order for their beingý recorded is given, and, whether inserted in the book or not, they are, in law, recorded. A copy of this record is declared equal to the original, and the fees to be paid by a person rea/ Copy of the record quiring a copy are ascertained by law. equal to the original. Can a keeper of a public record erase therefrom a commission which has been recorded? Or can he refuse a copy thereof to a person demanding it on the terms prescribed by law? Such a copy would, equally with the original, authorize the justice of peace to proceed in the performance of his duty, because it would, equally with the original, attest his appointment. If the transmission of a commission be not considered as necessary to give validity to an appointment, still less Marshall's Constitutional Opinions. 1 14 Acceptance of appoint- IS its acceptance. The appointment is ntient not necessary to give validity to ap- the sole act of the President; the acpoinmentceptance is the sole act of the officer, and is, in plain common sense, posterior to the appointment. As he may resign, so may he refuse to accept; but neither the one nor the other is capable of rendering the appointment a nonentity. That this is the understanding of the government is apparent from the whole tenor of its conduct. A commission bears date, and the Commission bears date from time of appoint- salary of the officer commences, from ment and not from transmission or ac- his appointment; not from the transceptance of appointee. mission or acceptance of his cornmission. When a person appointed to any office refuses to accept that office, the successor is nominated in the place of the person who has declined to accept, and not in the place of the person who had been previously in office, and had created the original vacancy It is, therefore, decidedly the opinion of the court that, when a commission has been signed by the President, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the Secretary of State. Where an officer is removable at the Distinction made in cases where Presi- Will of the executive, the circumstance dent's power of removal extends and where which completes his appointment is of it does not no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rig~hts which cannot be resumed. The discretion of the executive is to be exercised until 15 Marbuhr v. Madison. the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it. Mr. Marbury, then, since his cor- Marbury being apmission was signed by the President, pointed, and the appointment not being and sealed by the Secretary of State, verevocableheisvested was appointed; and as the law creating, are protected by law the office gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country. To withhold his commission, thereTo withhold his comfore, is an act deemed by the court mission is a violation not warranted by law, but violative of a vested legal right. of a vested legal right. This brings us to the second inquiry; which is,2d. If he has a right, and that right has been violated, do the laws of his country afford him a remedy? The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. "In all other cases," he says, "it is "Where there is a legal right there is also a general and indisputable rule, that, a legal remedy. Marshall's Consfitauional Opinions. 16 where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded." And afterwards, page 109 of the same volume, he says: "I am next to consider such injuries as are cognizable by the courts of the common law. And herein I shall for the present only remark that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military or maritime tribunals, are, for that very reason, within the cognizance of the common-law courts of justice; for it is a settled and invariable principle in the laws of Every right when withheld must have a ýrm- England that every right when withedy, and every injury its proper redress. held must have a remedy, and every injury its proper redress." The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case. It behooves us, then, to inquire whether there be in its composition any ingredient which shall exempt it from legal investigation or exclude the injured party from legal redress. In pursuing this inquiry the first question which presents itself is whether this can be arranged with that class of cases which come unThis case not within the class of a loss der the description of damnunm absque without an injury. 0 0 injuria, a loss without an injury. This description of cases never has been considered, and it is believed never can be considered, as compre 17 Marbury v. Madison. biending offices of trust, of honor, or of profit. The office of justice of peace in the District of Columbia is such an office; it is, therefore, worthy of the attention and guardianship of the laws. It has received that attention and guardianship. It has been created by special act of Congress, and has been secured, so far as the laws can give security, to the person appointed to fill it, for five years. It is not, then, on account of the worthlessness of the thing pursued that the injured party can be alleged to be without remedy. Is it in the nature of the transaction? Is the act of delivering or withholding a commission to be considered as a mere political act belonging to the executive department alone, for the performance of which entire confidence is placed by our Constitution in the supreme execu tive; and for any misconduct respecting which the injured individual has no remedy? That there may be such cases is not to be questioned; but that every act of duty to be performed in any of the great departments of government constitutes such a case is not to be admitted. By the act concerning invalids, passed in June, 1794 (vol. 3, p. 112), the Secretary at War is ordered to place on the pension-list all persons whose names are contained in a report previously made by him to Congress. If he should refuse to do so, would the wounded veteran be without remedy? Is it to be contended that, where the law in precise terms directs the performance of an act in which an individual is interested, the law is incapable of securing obedience to its mandate? Is it on account of the char(acter of the person against whom the complaint is made? Is it to be contended that the heads of departments are not amenable to the laws of their country? 2 Marshall's Constitutional Opinions. 18 Whatever the practice on particular occasions may be, the theory of this principle will certainly never be maintained. No act of the Legislature confers so extraordinary a privilege, nor can it derive countenance from the doctrines of the common law. After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone (vol. 3, p. 255) says: "But injuries to the rights of property can scarcely be committed by the Crown without the intervention of its officers, for whom the law, in matters of right, entertains no respect or delicacy, but furnishes various methods of detecting the errors and misconduct of those agents by whom the King has been deceived and induced to do a temporary injustice." By the act passed in 1796, authorizing the sale of the lands above the mouth of Kentucky river (vol. 3, p. 299), the purchaser, on paying his purchase-money, becomes completely entitled to the property purchased, and on producing to the Secretary ypotheticalfcaseput of State the receipt of the Treasto elucidate point. urer, upon a certificate required by the law, the President of the United States is authorized to grant him a patent. It is further enacted that all patents shall be countersigned by the Secretary of State and recorded in his office. If the Secretary of State should choose to withhold this patent, or, the patent being lost, should refuse a copy of it, can it be imagined that the law furnishes to the injured person no remedy? It is not believed that any person whatever would attempt to maintain such a proposition. It follows, then, that the question, whether the legality of an act of the head of a department be examinable in 19 19 Marbury v. Madison. a court of justice or not, must always depend on the nature of that act. If some acts be examinable and others not, there must be some rule of law to guide the court in the exercise of its jurisdiction. In some instances there may be difficulty in applying the rule to particular cases; but there cannot, it is believed, be much difficulty in laying down the rule. By the Constitution of the United States the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers who act by his authority and in conformity with his orders. In such cases their acts are his acts, and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists and can exist no power to control that discretion. The subjects are political. They respect the Nation, not individual rights; and being intrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated. The acts of such anA'officer as an officer can never be ex., aminable by the courts. But when the Legislature proceeds to impose on that officer other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are Marshall's Constitutiona! Opinions. 20 dependent on the performance of those acts,-- he is so far the officer of the law; is amenable to the laws for his conduct; and cannot at his discretion sport away the vested rights of others. The conclusion from this reasoning is that where the heads of departments are the political Distinction where acts may only be politically or confidential agents of the executive, examinable and where a ight to resort to law merely to execute the will of the P]resifor a remedy. dent, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy. If this be the rule, let us inquire how it applies to the case under the consideration of the court. The power of nominating to the Senate, and the power of appointing the person nominated, are political powers, to be exercised by the President according to his own discretion. When he has made an appointment he has exercised his whole power, and his discretion has been completely applied to the case. If, by law, the officer be removable at the will of the President, then a new appointment may be immediately made, and the rights of the officer are terminated. But as a fact which has existed cannot be made never to have existed, the appointment cannot be annihilated; and, consequently, if the officer is by law not removable at the will of the President, the rights he has acquired are protected by the law, and are not resumable by the President. They 21 21 Marbury~ v. Madison., cannot be extinguished by executive authority; and he has the privilege of asserting them in like manner as if they had been derived from any other source. The question, whether a right has Whether a right has vested or not, is in its nature judicial, vested or not is in its nature a judicial quesand must be tried by the judicial au- tion thority. If, for example, Mr. Marbury had taken the oaths of a magistrate, and proceeded to act as one, in consequence of which a suit had been instituted against him, in which his defense had depended on his being a magistrate, the validity of his appointment must have been determined by judicial authority. So, if he conceives that, by virtue of his appointment, he has a legal right either to the commission which has been made out for him, or to a copy of that commission, it is equally a question examinable in a court, and the decision of the court upon it must depend on the opinion entertained of his appointment. That question has been discussed, and the opinion is that the latest point of time which can be taken as that at which the appointment was complete, and evidenced, was when, after the signature of the President, the seal of the United States was affixed to the commission. It is, then, the opinion of the court: 1st. That, by signing the commission Marhuryls right to ofof Mr. Marbury, the President of the flce and the violation of United States appointed him a justice that right in this case. of peace for the county of Washington, in the District of Columbia; and that the seal of the United States, affixed thereto by the Secretary of State, is conclusive testimony of the verity of the signature, and of the completion of the appointment; and that the appoint Marshall's Constitutional Opinions. 2 22 ment conferred on him a legal right to the office for a space of five years. 2d. That, having this legal title to the office, he has a consequent right to the commission; a refusal to deliver which is a plain -violation of that right for which the laws of his country afford him a remedy. Is arbry ntiledto It remains to be inquired whether: the remiedy for which 3d. He is entitled to the remedy for he applies? which he applies. This depends on,1st. The nature of the writ applied for; and,2d. The power of this court. 1st. The nature of the writ. Blackstone's definition 131ackistone, in the third volume of of mandamtus his Commentaries, page 110, defines a mandamus to be "1a command issuing in the King's name from the Court of King's Bench, and directed to a~ny person, corporation, or inferior court of judicature within the King's dominions, requiring them to do some particular thing therein specified which appertains to their office and duty, and which the Court of King's Bench has previously determined, or at least supposes to be consonant to right and justice. Lord Mansfield, in the case of The King v. Baker et al. (3 Burrow's R~eports, 1266), states, with much precision and explicitness, the cases in which this writ may be used. "Whenever," says that very able judge, "there is a right to execute an office, perform a service, or exercise a franchise (more especially if it be Mansfield states cases where this writ may in a matter of public concern, or atbe usedtended with profit), and a person is kept out of possession, or dispossessed of such right, and has no other specific legal remedy, this court ought to assist by mandamus, upon reasons of justice, as the 23 23 Marburt' v. Madison. writ expresses, and upon reasons of public policy, to, preserve peace, order, and good government." In the same case he says, "1This writ ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." In addition to the authorities now particularly cited, many others were relied on at the bar, which show how far the practice has conformed to the general doctrines that have been just quoted. This writ, if awarded, would be directed to an officer of gYovernment, and its mandate to him would be, to use the words of Blackstone, "t oa atcla hn therein specified which appertains to his office and duty, and which the court has previously determined, or at least supposes, to be consonant to right and justice." Or, in the words of Lord Mlansfield, the applicant in this case has a right to execute an office of public concern, and is kept out of possession of that right. These circumstances certainly concur in this case. Still to render the mandamus a proper remedy, the officer to whom it is to be directed must be one to whom on legal principles such writ may be directed; and the person applying for it must be without any other specific and legal remedy. 1st. With respect to the officer to whom it would be directed. The intimate political relation subsisting between the President of the United States and the heads of departments necessarily renders any legal investigation of the acts of one of those high officers peculiarly irksome as well as delicate, and excites some hesitation with respect to the propriety of entering into such investigation. Impressions are often received without Marshall's Consti/ufional Opinions. 2 24 much reflection or examination, and it is -not wonderf ul that in such a case as this the assertion by an individual of his legal claims in a court of justice, to The court disclaims all which claims it is the duty of that court idea of attempts at in- t attendsol at first view be contrusion into the Cab-tosul inet or meddling with ~'- y~t n prerogatives of the ex- Sidered b some as an attempt o n ecutive. trude into the Cabinet and to intermeddle with the prerogatives of the executive. It is scarcely necessary for the court to disclaim all pretensions to such a jurisdiction. An extravagance so absurd and excessive could not have been entertained for a moment. The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion. Questions in their nature political, or which are by the Constitution and laws submitted to the executive, can never be made in this court. But if this be not such a question; if, so far from beReasons given why it is ing an intrusion into the secrets of thenot an intrusion. Cabinet, it respects a paper which according to law is upon record, and to a copy of which the law gives a right on the payment of ten cents; if it be no intermeddling with a subject over which the executive can be considered as having exerc,..ised any control; what is there in the exalted station of the officer which shall bar a citizen from asserting in a court of justice his legal rights, or shall forbid a court to listen to the claim, or to issue a mandamus directing the performance of a duty not depending on executive discretion, but on particular acts of Congress and the general principles of law? If one of the heads of departments commits any illegal act, under color of his office, by which an individual sustains an injury, it cannot be pretended that his office 25 Marbury v. Madison. alone exempts him from being sued in the ordinary mode of proceeding, and being compelled to obey the judgment of the law. How, then, can his office exempt him from this particular mode of deciding on the legality of his conduct, if the case be such a case as would, were any other individual the party complained of, authorize the process? It is not by the office of the person Propriety of issuing mandamus is de t e r - to whom the writ is directed, but the mined by the nature of the thing to be done, nature of the thing to be done, that the not by the office of the person to whom wit propriety or impropriety of issuing a is directed. mandamus is to be determined. Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, it is again repeated, that any application to a court to control, in any respect, his conduct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden - as, for example, to record a commission, or a patent for land, which has received all the legal solemnities; to give a copy of such record, - in such cases it is not perceived on what ground the courts of the country are further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were to be performed by a person not the head of a department. This opinion seems not now for the first time to be taken up in this country. It must be well recollected that in 1792 an act passed Marshall's Constitutional Opinions. 2 26 directing the Secretary at War to place on the pens.;onlist such disabled officers and soldiers as should be reNon-judicial duties ported to him by the Circuit Courts, canotbe mpsedonwhich act, so far as the duty was imIV-ion.posed on the courts, was deemed unconstitutional; but some of the judges, thinking that the law might be executed by them in the character of com.missioners, proceeded to act and to report in that character. This law being deemed unconstitutional at the circuits was repealed and a different system was established; but the question whether those persons who had been reported by the judges, as commissioners, were entitled, in consequence of that report, to be placed on the pensionlist was a legal question properly determinable in the courts, although the act of placing such persons on the list was to be performed by the head of a department. That this question might be properly settled, Congress passed an act, in February, I79, making it the duty of the Secretary of War, in conjunction with the AttorneyGeneral, to take such measures as might be necessary to obtain an adjudication of the Supreme Court of the United States on the validity of any such rights claimed under the act aforesaid. After the passage of this act a mandamus was moved for, to be directed to the Secretary at War, commanding him to place on the pension-list a person stating himself to be on the report of the judges.' There is, therefore, much reason to believe that this mode of trying the legal right of the complainant was deemed by the head of a department, and by the highest ISee note at end of this case. 27 27 Marhary v. Madison. law officer of the United States, the most proper which could be selected for the purpose. When the subject was brought before the court the decision was n ot that a mandamus would not lie to the head of a department directing him to perform an act enjoined by law, in the performance of which an individual had a vested interest, but that a mandamus ought not to issue in that case; the decision necessarily to be made if the report of the commissioners did not confer on the applicant a legal right. The judgment in that case is understood to have decided the merits of all claims of that description, and the persons on the report of the commissioners found it necessary to pursue the mode prescribed by the law subsequent to that which had been deemed unconstitutional, in order to place themselves on the pension-list. The doctrine, therefore, now ad- The doctrine now advanced is by no means a novel one. vanced not a novel one. It is true that the manidamus now moved for is not for the performance of an act expressly enjoined by statute. It is to deliver a commission, on which subject the acts of Congress are silent. This difference is not considered as affecting the case. It has already been stated that the applicant has to that commission a vested legal right of which the executive cannot deprive him. He has been appointed to an office from which he is not removable at the will of the executive, and being so appointed he has a right to the commission which the Secretary has received from the President for his use. The act of Congress does not indeed order the Secretary of State to send it to him, but it is placed in his hands for the person entitled to it, and can-not be more lawfully withheld by him than by any other person. Marshall's Constitutional Opinions. 2 28 It was at first doubted whether the action of detinue was not a specific legal remedy for the commission which has been withheld from, Mr. IMarbury; in which case a mandamus would be improper. But this doubt has yielded to the consideration that the judgment in detinue is for the thing itself, or its value. The value of a public office not to be sold is incapable of beinge ascertained; and the applicant has a right to the office itself, or to nothing. He wvill obtain the office by obtaining the commission, or a copy of it from the record. Plain case for a mans- This, then, is a plain case for a mandamus. damus, 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 Power of Supreme rt Court to issue a mans- court of the United States authorizes dams n hiscae. the Supreme Court "1to 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 Secretary of State being a person holding an office under the authority of the United States is precisely within the letter of the description; and if this court is not authorized to issue a writ of mandamus to such an officer, it must be because the law is unconstitutional., and therefore absolutely incapable of conferring the authority and assigning the duties which its words purport to confer and assign. Judcia pwervesed The Constitution vests. the whole juin one Supreme Court diciapoeofteUidSaesn by heContiutin. one Supreme Court, and such inferior courts as Congress shall from time to time ordain and 29 29 Marbury v. Madison. establish. This power is expressly extended to all cases arising under the laws of the United States; and consequently, in some form, may be exercised over the present case; because the right claimed is given by a law of the United States. In the distribution of this power it is declared that "1 the Supreme Court shall have original jurisdiction in all cases affecting, 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." It has been insisted at the bar, that, as the original grant of jurisdiction to Point made that the Supreme Court has no the Supreme Court and inferior courts ma~ttenr. hi is general, and the clause assigning original jurisdiction to the Supreme Court contains no neg~ative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that court in other cases than those specified in the article which has been recited; provided those cases belong to the judicial power of the United States. If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have beenThresnwyudr useless to have proceeded further than the Constitution this to have defined the judicial power, and cu a uidcin the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. If Cong~ress remains at liberty to give this court appellate jurisdiction, where the Constitution has declared their jurisdiction shall be original; and original jurisdiction, where the Constitution has declared it shall be appellate, Marshall-'s Constitutional Opinions.,3 30 the distribution of jurisdiction made in the Constitution is form without substance. Affirmative words are often in their operation negative of other objects than those affirmed; and in this case a negative or exclusive sense must be given to them, or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it. If the solicitude of the convention respecting our peace with foreign powers induced a provision that the Supreme Court should take original jurisdiction in cases which might be supposed to affect them, yet the clause would have proceeded no further than to provide for such cases, if no further restriction on the powers of Congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as Congress might make, is no restriction, unless the words be deemed exclusive of original jurisdiction. When an instrument organizing fundamentally a judicial system divides it into one Supreme and so many inferior courts as the Legislature may ordain and establish; then enumerates its powers, and proceeds so far to distribute them as to define the, jurisdiction of the Supreme Court, by declaring the cases in which it shall take original jurisdiction, and that in others it shall take appellate jurisdiction, the plain import of the words seems to be, that in one class of cases its jurisdiction is original, and not appellate; in the other it is appellate, and not original. If any other construction would render the clause inoperative, that is an additional reason for rejecting such other construction, and for adhering to their obvious meaning. Marbury v. Madison. To enable this court then to issue a mandam~us it must be shown to be an exercise of appellate jurisdiction or to be necessary to enable them to exercise appellate jurisdiction. It has been stated at the bar that the appellate jurisdiction may be exercised in a variety of forms, and that if it be the will of the legrislature that a mandamus ýshould be used for that purpose, that will must be ob~eyed. This is true, yet the jurisdiction must be appellate, not,original. 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 whether a jurisdiction so conferred can be exercised. The question whether an act repug- An act repugnant to nant to the Constitution can become the Constitution can. the law of the land is a question deeply the land. interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles supposed to have been long and well established to decide it. Marshall's Constitutional Opinions. 32 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 certain limits not to be transcended by those departments.' The government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten the Constitution is written. To what purpose are powers limited and to what purpose is that limitation committed to writing, if these limits rpay 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 contested, that the Constitution controls any legislative act 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, 1 See Federalist, No. 78. 33 Marbury v. Madison. 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 contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to Essential theory and a written Constitution, and is conse- purpose of a written Constitution. quently 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 void, 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 department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other the courts must decide on the operation of each. 3 Marshall's Constitutional Opinions. 3 34 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 conformablyr 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 reg~ard the Constitution, and the Constitution 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, Ein practice, completely obligatory. It would declare that, if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. 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 declaringr that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written Constitution, would of itself be sufficient in America, where written Constitutions have been viewed with so much reverence, for rejectingr the construction. But the 35 35 Marbury v. Madison.. peculiar expressions of thie Constitution of the United States furnish additional arguments in favor of its rejection. 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 arisingy under the Constitution should be decideld 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 Ilsrtosfo Constitution which serve, to illustrate other sections of the Constitution. this subject. It is declared that "1no tax or duty shall be laid on articles exported from any State." Suppose a duty on the export 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 "1that no bill of attainder or er~oposfacto law shall be passed." if, however, such a bill should be passed, and a person should be prosecuted under it, must the court condemn to death those victims whom the Constitution endeavors to preserve? "No person," says the Constitution, "1shall 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 es Marshall's Constitutional Opinions. 36 pecially to the courts. It prescribes directly for them a rule of evidence not to be departed from. If the Legislature should change that rule, and declare one witness, or a confession out of court, sufficient for cofiviction, must the constitutional principle yield to the legislative 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 support it? This oath certainly applies in an especial manner to their 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: " I 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, 37 Marbury v. Madison. in declaring what shall be the suepremne law of the landl, 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 Constitution, 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 departments, are bound by that instrument. The rule must be discharged. NOTE Commenting on Marbury v. Madison, Parsons says:1 "I should not do justice to my own deliberate belief did I not say that I think this decision is not surpassed in the ability it displays, nor equaled in its utility, by any case in the multitudinous records of English or American jurisprudence."12 Chancellor Kent's observations are not the less striking. He says: "This great question may be regarded as now finally settled, and I consider it to be one of the most interesting points in favor of constitutional liberty and of the security of property in this country that has ever been judicially determined. In Marbury against Madison this subject was brought under the consideration of the Supreme Court of the United States and received a clear and elaborate discussion. The power and duty of the judiciary to disregard an unconstitutional act of Congress, or of any State Legislature, were declared in an argument approaching to the precision and certainty of a mathematical demonstration."3 1 Marshall Memorial, 1, 362, 363. 2American Law Review, 1865, p. 432, "John Marshall." 3 Kent's Comm., Vol. I, pp 453, 454. Marshall's Constitutional Opinions. 38 More impressive and emphatic still is the utterance of one of the most eloquent and able lawyers of the American Bar: "I do not know," said Rufus Choate, "that I can point to one achievement in American statesmanship which can take rank for its consequences of good above that single decision of the Supreme-Court which adjudged that an act of the Legislature contrary to the Constitution is void, and that the judicial department is clothed with the power to ascertain the repugnancy and pronounce the legal conclusion. That the framers of the Constitution intended this to be so is certain; but to have asserted it against Congress and the Executive, to have vindicated it by that easy yet adamantine demonstration than which the reasonings of mathematics show nothing surer, to have inscribed this vast truth of conservatism upon the public mind, so that no demagogue not in the last stages of intoxication denies it, - this is an achievement of statesmanship [of the judiciary] of which a thousand years may not exhaust or reveal all the good." Referring to Marbury's case, one of the greatest of constitutional judges in this country, the late Mr. Justice M/iller, declared that "the immense importance of this decision [Marbury v. Madison], though in some respects obiter, since the court declared in the end that they had no jurisdiction of the case, may be appreciated when it is understood that the principles declared, which have never since been controverted, subjected the ministerial and executive officers of the government all over the country to the control of the courts in regard to the execution of a large part of their duties, and whose application to the very highest officers of the government, except, perhaps, the President, has been illustrated in numerous cases in the courts of the United States. In fact," he says, "its assertion or denial makes just the difference, as Marshal tersely said in that opinion, between 'a government of laws and a government of men.' "1 "For the following very complete note of the prior cases [on the subject of the power of courts to declare 1 Historical Address upon the Supreme Court, Philadelphia, 1889; Miller on the Constitution, p. 386; Marshall Memorial, I, 360. 39 Marbury v. Madison. statutes in conflict with the Constitution to be void] I am indebted to Ardemus Stewart, Esq., of the Philadelphia Bar. Comm. v. Caton, 4 Call, 5 (Va., 1782); Cases of the Judges of the Court of Appeals, 4 Call, 135 (Va., 1788); Trevett v. Weeden (R. I., 1786), Arnold's Hist. of R. I., vol. 2, ch. 24, and see Cooley's Constitutional Limitations, 193, n. 3; Den on Demise of Bayard v. Singleton, 1 Martin, 48 (N. C., 1787); Ogden v. Witherspoon, 2 Hay ward, 227 (N. C., 1799); Bowman v. Middleton, 1 Bay, 252 (S. C., 1792); Austin's Lessee v. Trustees, etc. (Pa., 1793), referred to in Emerick v. Harris, 1 Binney, 416; case of Holmes and Walton, and Taylor v. Reading, in New Jersey, cited by Kirkpatrick, C. J., in State v. Parkhurst, 4 Halsted (9 N. J. Law), 427; Van Horne v. Dorrance, 2 Dall. 304 (1795). " On April 5, 1792, the Circuit Court for the District of New York, consisting of Chief Justice Jay, Justice Cushing, and Duane, District Judge, declared it as their unanimous opinion that the pension law passed by Congress on March 23, 1792, was invalid, because it attempted to assign to the judicial department duties which were not judicial; on June 8, 1792, the Circuit Court for the District of North Carolina made a similar declaration in a joint letter, addressed to the President of the United States; and on April 18, 1792, the Circuit Court for the District of Pennsylvania addressed a similar joint letter to the President. Somewhat later in the same year the Supreme Court of the United States, in Hayburn's Case (1792), 2 Dall. 409, refused to carry the act into effect. " In Emerick v. Harris (1808), 1 Bin. (Pa.) 416, the right of the courts to pass upon the constitutionality of an act of the Legislature was asserted, though the act in question was held to be constitutional. Mr. Justice Yeates stated that Marbury v. Madison was not published until after his opinion had been prepared. "The constitutionality of statutes had been argued without expressly stating the power of the court to declare them void, if unconstitutional, in several other cases, e. g., Hilton v. United States (1796), 3 Dall. (U. S.) 171, where the statute was held constitutional, and Iespublica v. Cobbett (1798); Respublica v. Duguet (1799), and Respublica v. Franklin (1802), unreported cases in Marshall's Constitutional Opinions. 40 the Supreme Court of Pennsylvania, cited by Mr. Justice Yeates in his opinion in Emerick v. Harris (1808), 1 Bin. (Pa.) 416, 422." Justice Mitchell, address in Marshall Memorial, I, 482, 483, note. See also McMaster, Hist. of the People of U. S., I, 337, 338, V, 397 et seq.; Story, Com., I, ch. VI, ~ 486, note. See especially Thayer's Cases on Constitutional Law, with notes, Volume I, pages 48-107, where the earlier cases on the subject of the power of the courts to declare statutes contrary to the Constitution to be void are given, with instructive and valuable notes by the learned editor. See, also, Dillon's Laws and Jurisprudence of England and America, pages 199, 200, 227, note. On Marshall Day, 1901, Marbury's case was more frequently referred to by the speakers than any other of Marshall's great decisions. REFERENCES TO MARBURY v. MADISON IN MARSHALL MEMORIAL VOL. L Introduction by Hon. John F. Dillon, pp. xviii, xxi, xxii, xxv et seq., xlii; Justice Horace Gray, pp. 66, 93; Hon. Wm. L. Putnam, pp. 103, 104; Hon. Charles Freeman Libby, pp. 119, 120; Prof Jeremiah Smith, pp. 141 et seq.; Prof. James Bradley Thayer, pp. 229 et seq., 234, 235; Judge Le Baron Colt, pp. 295, 296, 304; Charles E. Perkins, pp. 321, 822; Chief Judge A. B. Parker, pp. 342, 343; Hon. John F. Dillon, pp. 358 et seq.; Judge Francis M. Finch, pp. 394 et seq.; Hon. W. Bourke Cockran, pp. 413, 416; Justice James T. Mitchell, pp. 481, 482, 483; Hon. John Bassett Moore, p. 517. VoL. II Charles J. Bonaparte, Esq., pp. 16, 24 et seq., 36, 37; Justice Henry B. Brown, pp. 43, 55; Judge James C. MacRae, pp. 78, 85, 86: Judge Charles H. Simonton, pp. 103, 104; Hon. H. Warner Hill, pp. 112, 113; Burton Smith, Esq., p. 122; Joseph P. Blair, Esq., pp. 152 et seq.; Judge Horace H. Lurton, pp. 202, 203; Judge Waller C. Caldwell, p. 217; Chief Justice John A. Shauck, pp. 226, 227, 235; Hampton L Carson, Esq., pp. 243, 252 et seq.; Hon. John F Follett, pp. 274, 275; Hon. William A. Ketcham, p. 291; Hon. Henry Cabot Lodge, pp. 323, 326, 327; Judge Peter S. Grosscup, p. 336; Hon. William Lindsay, pp. 350, 357; 41 Marbury v. Madison. Isaac N. Phillips, Esq.. pp. 383, 388; NealBrown, Esq., pp. 419, 420; John N. Baldwin, Esq., p. 435; W. S Kenyon, Esq., p. 446; Gov. A. B. Cummins, pp. 456 et seq.; William McNett, Esq., pp. 461; Frederick W. Leh mann, Esq., pp. 468, 480; Hon. Henry Hitchcock, pp. 507, 508; James L. Blair, Esq., p. 526; Judge Elmer B. Adams, pp. 534 et seq.; Sanford B. Ladd, Esq., pp. 555, 556. VOL II. Judge John H. Rogers, pp. 33, 34; Hon. J. G. Slonecker, p. 64; Julius C. Gunter, Esq., p. 112; Hon. U. M. Rose, Colorado, pp. 116, 117, 118, 119, 124, 128, 12n, 130; Judge Bartlett Tripp, pp. 156 et seq.; Judge T. B. McFarland, p. 184; Judge J. A. Cooper, p. 190: Hon. John D. Pope, p. 195; James E. Babb, Esq., p. 199; Hon. George H. Williams, p. 220; Horace G. Platt, Esq., pp. 231, 232; Judge Cornelius H. Hanford, pp. 247, 248; Charles E. Shepard, Esq, p. 270; Oration of Hon. Edward John Phelps, p. 391; Oration of Chief Justice Waite, p. 406; Oration of Win. H. Rawle, p. 422. Further references to Marbury's case, see Miller, Const. of U. S. 384-387; Kent, Corn. (12th ed.) 288a, 322, 453, 454; Cooley, Const. Lim. 46 and note 1; Thorpe, Const. Hist. of U. S., II, 466-468; John Marshall by Prof. J. B. Thayer, 74-78; John Marshall by Allan B. Magruder, 182-186. This case was fully reviewed in Kendall v. United States, 12 Pet. 524; s. P., United States v. Schurz, 102 U. S. 378. CONGRESS MAY CONSTITUTIONALLY GIVE THE UNITED STATES A PREFERENCE IN BANKR UPTC Y OVER OTHER CREDITORS. The United States v. Fisher and Others, Assignees of Blight,, a Bankrupt FEBR-UARY TERM, 1805. [2 Cranch's Reports, 358-405.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The power to make all laws necessary and proper to carry into execution the powers granted confers on Congress the choice of means and does not confine it to what is indispensably necessary. The fifth section of the act of the 3d of March, 1797,1 giving a preference to the United States in cases of insolvency, is not confined to persons accountable for public money, but extends to debtors of the United States generally. Congress has power to make such a law. Only one question in this case invol-ved the construction of the Constitution. We give so much of the 43 43 United States v. Fisher et al. opinion of the courtI as relates to the constitutional question, which was as to the constitutionality of an act of Congress which gave the United States a preference over the other creditors of a bankrupt. MARSHALL, Chief Justice. To the general observations made on this subject, it will only be observed that Opinion. as the court can never be unmindful of the solemn duty imposed on the Judicial Department when a claim is supported by an act which conflicts with the Constitution, so the court can never be unmindf ul of its duty to obey laws which are authorized by that instrument. In the case at bar the preference claimed by the United States is not prohibited, but it has been truly said that under a Constitution conferring specific powers the power contended for must be granted or it cannot be exercised. It is claimed under the authority to make all laws which shall be necessary and proper toII Necessary " and carry into execution the powers vested by i proper I clause. the Constitution in the government of the United States, or in any department or officer thereof. In construing this clause it would be incorrect, and would produce endless difficulties, if the opinion should I The court was constituted as follows: JOHN MARSHALL, Chief Justice. WILLIAM CUSHING, - WILLIAM PATERSON, soit utcs BUSHROD WASHINGTON, soit9utcs WILLIAM JOHNSON, Justice Johnson dissented in this case. The case was argued for the United States by Mr. George M. Dallas, attorney of the United States for the district of Pennsylvania. Mr. Harper, Mr. Ingersoll, Mr. Lewis and Mr. Lee for the defendants in error. Marshall's Constitutional Opinions. 4 44 Construction of be maintained that no law was authorized the clause. which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution. The Government is to pay the debt of the Union and must be authorized to use the means which appear to itself most eligible to effect that object. It has, consequently, a right to make remittances by bills, or otherwise, and to take those precautions which will render the transaction safe. This claim of priority on the part of the United States Will, it has been said, interfere with the right of the State sovereigonties respecting the dignity of debts, and will defeat the measures they have a right to adopt to secure themselves against delinquencies on the part of their own revenue officers. But this is an objection to the Constitution itself. The mischief suggested, so far as it can really happen, is the necessary consequence of the supremacy of the laws of the United States on all subjects to which the legislative power of Congress extends. NOTE. The action was instituted to try two questions: 1. Whether an attachment laid by the United States on property of the bankrupt in the hands of the collector of Newport, in R~hode Island, after the commission of bankruptcy had issued, is available against the assignees. 45 United States v. Fisher et al. 2. Whether the United States are entitled to be first paid and satisfied in preference to the private creditors, a debt due to the United States by Peter Blight, as indorser of a foreign bill of exchange, out of the estate of the bankrupt in the hands of the assignee. The second question brought up for determination the constitutionality of the fifth section of the act of March 3, 1797, which provided: "That where any revenue officer, or other person hereafter becoming indebted to the United States by bond or otherwise, shall become insolvent, or where the estate of any deceased debtor in the hands of executors or administrators shall be insufficient to pay all the debts due from the deceased, the debt due to the United States shall be first satisfied; and the priority hereby established shall be deemed to extend as well to cases in which a debtor, not having sufficient property to pay all his debts, shall make a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed or absent debtor shall be attached by process of law, as to cases in which an act of legal bankruptcy shall be committed." Mr. Ingersoll, for the defendants, in his argument that the act was unconstitutional, made the following points: "If liens general or specific, if judgments and mortgages are to be set aside by the prerogative of the United States, it will be to impair the obligation of contracts by an ex post facto law. Under what clause of the Constitution is such a power given to Congress? Is it under the general power to make all laws necessary and proper for carrying into execution the particular powers specified? If so, where is the necessity or where the propriety of such a provision, and to the exercise of what other power is it necessary? But it is in direct violation of the Constitution, inasmuch as it deprives the debtor of his trial by jury without his consent." This case brought up the construction of that clause of the Constitution known as the " necessary and proper" or the " sweeping clause."' Both Madison and Hamilton commented upon it, and the latter devoted to it several 1 Story, Const., I, oh. V, ~~ 430, 431 and notes; Cooley, Const. Lim., 63; Tucker, Const. of U. S., I, 367, 368; Thorpe, Const. Hist. of U. S., I, 525; Miller, Const. of U. S., 143, 144. Marshall's Constitutional Opinions.,4 46 pages of the Federalist.' Marshall had frequent occasion to consider this clause and he applied to it the rules of construction which he uniformly adopted where a liberal construction was vital to the supremacy of the Constitution. Years later in the great case of McCulloch v. Maryland, Marshall referringr, inter alia, to this clause laid down the well known canon: 2 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." This construction has ever since been followed, and was notably applied in the Slaughter-House CasesI and the Leg~al-Tender Cases.' In connection with this subject it is not amiss to insert the expressive language of Justice Johnson in delivering the opinion of the court in Anderson v. Dunn, 6 Wheaton, 204: "1The idea is Utopian that government can exist without leaving the exercise of discretion somewhere. Public security against the abuse of such discretion must rest on responsibility and stated appeals to public approbation. Where all power is derived from the people, and public functionaries at short intervals deposit it at the feet of the people, to be resumed again only at their own wills, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger." 5 REFERENCES TO UNITED STATES v. FISHER et al. IN MARSHALL MEMORIAL Marshall maintained the authority of Congress to make all laws necessary and proper to carry into effect the powers vested by the Constitution in the government of the United States. Hon. John Bassett Moore, I, 51& From 1805 in the case of the United States against Fisher to the last day of his service he (Marshall) never missed an opportunity to 1 Federalist, No. xxxiii, also Madison, No. xliv. 2 Tucker, Const. of U. S., I, 361; Thorpe, Const. Hist. of U. S., 11, 487. 316 Wall. 36. 112 Wall. 457. 5Se also Miller, Const. of U. S., 417, 418. 47 United States v. Fisher et at. assert the supremacy of the Federal Government on all matters committed to it by the Constitution as the vital principle of our national existence, nor to show by irresistible logic that to question its sovereignty was to plot its destruction. W. Bourke Cochran, 1,9412. In 1805, in the United States against Fisher, he (Marshall) found in the clause of the Constitution giving Congress the right to pass all necessary and proper laws for carrying into execution the powers vested in them by the Constitution, authority for a law making the United States a preferred creditor. Henry Cabot Lodge, II, 329; Hon. Henry Hitchcock, 11, 515. THE DISTRICT OF COLUMBIA IS NOTA "STATE" WITHIN THE MEANING OF THE CONSTITUTION. Hepburn and Dundas v. Ellzey. FEBRUARY TERM, 1805. [2 Cranch's Reports, 445-453.] The proposition of law decided is thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The District of Columbia is not "a State" within the meaning of that term as used in the Constitution, and its citizens cannot sue in the courts of the United States as citizens of any State. Hepburn and Dundas, who were citizens of the District of Columbia, sued Ellzey, who was a citizen of Virginia, in the United States Circuit Court holden in the District of Virginia, and this question arose: "Are citizens of the District of Columbia citizens of Is the District of Co- a State within the meaning of the seclumbia a "State" within the meaning of ond section of the third article of the art. 3, sec. 2, of the constitution of U.S. Constitution of the United States?" The judges of the Circuit Court being opposed in opinion upon this question, it was brought before the Supreme Court,1 the opinion of which was given as follows: 1 The court was constituted as follows: JOHN MARSHALL, Chief Justica WILLIAM GUSHING, I WILLIAM PATERSON, Associate Justice. SAMUEL CHASE, BUSHROD WASHINGTON, The case was argued by E. J. Lee for the plaintiffs and by Charles Lee for the defendant. 49 Hepburn and Dundas v. ElIzey. MARSHALL, Chief Justice. The question in this case is whether the plaintiffs, as residents of the District 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. That act ives u ti Under an act of Cono Jurisdiction to the Circuit Courts gress Circuit Court has jurisdiction in cases bein cases between a citizen of the State tween a citizen of the State where suit is in which the suit is brought and a citi- brought and citizen of another State zen of another State. To support the jurisdiction in this case, therefore, it must appear that Columbia is a State. On the part of the plaintiffs it has been urged that Columbia is a distinct political society, and is therefore "a State," according to the definitions 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 becomes necessary to inquire whether Columbia is a State in the sense of that instrument. The result of that examination is a conviction that the members of the American Confederacy only are the States contemplated in the Constitution. The House of Representatives is to be composed of members chosen by the people of the several States; and each State shall have at least one representative. 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 Certain clauses show that the word "State" "State " is used in the Constitution as is used in the Constitution as designating a designating" a member of the Union, member of the Union. and excludes from the term the signifi4 Marshall's Constitutional Opinions. 50 cation attached to it by writers on the laws of nations. When the same term, which has been used plainly in this limited sense, in the articles respecting the Legislative and Executive Departments, is also employed in that which respects the Judicial Department, it must be understood as retaining the sense originally given to it. Other passages from the Constitution have been cited by the plaintiffs to show that the term " State " is sometimes used in its more enlarged sense. But on examining the passages quoted, they do not prove what was to be shown by them. It is true that, as citizens of the United States, and of that particular district which is subject to the jurisdiction of Congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every State in the Union, should be closed upon them. But this is a question for legislative, not for judicial consideration. The opinion to be certified to the Circuit Court is, that that court has no jurisdiction in the case. NOTE. See Tucker, Const. of U. S., II, 600, 787, 792; Scott v. Jones, 5 How. 343, 377; Thorpe, Const. Hist. of U. S., II, 490; Kent, Com. (12th ed.), I, 349c, 385b. THE AMERICAN LA W OF TREASON. The Constitution of the United States, article III, section 3, defines the crime of treason, and what is essential to a conviction thereof, as follows: "Treason against the United States shall consist only in levying war against them or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court." This important provision was designed to abolish the law of constructive treason as it existed in England. Substantially the same provision has been made in the Constitutions of the several States in defining treason against the States. The construction of the above quoted provision of the Constitution of the United States relating to treason, although questions concerning it had arisen in the inferior courts, first came before the Supreme Court of the United States in the case below given of Bollman and Swartwout, arising out of the Burr conspiracy, or enterprise, at the February Term, 1807, and it underwent a further and most deliberate examination in the trial of Burr on the charge of treason, in the case of the United States v. Burr, before Marshall, Chief Justice, and Griffin, District Judge of the United States, in the Circuit Court for Virginia in 1807. As these two cases constitute the foundation, in fact almost the body, of the American law of treason, the opinions of Marshall's Constitutional Opinions. 52 the Chief Justice are given in full in the two cases that follow.' The soundness of Marshall's exposition of the law of treason in these two cases, as that offense is defined in the Constitution of the United States, has never been questioned and is unquestionable. That part of the opinion in Bollman and Swartwout, that, if war be actually levied, all who are actually leagued in the general conspiracy and who perform any part, however minute, or however remote from the scene of action, are traitors, was criticised in the arguments of counsel in the Burr case as giving countenance to the English doctrine of constructive treason. However this may be, the opinion of the Chief Justice in the Burr trial, below given, explains and shows that only those who have done some act or taken part in the accomplishment of the overt act of treason charged in the indictment are guilty of the crime as defined in the Constitution of the United States.2 The opinion of the Chief Justice in the Burr case was delivered after the most exhaustive arguments on the question, commencing on August 21st and ending on Saturday, August 29th, the discussion having been participated in by Mr. Rodney, Mr. MacRae, Mr. Wirt, Mr. Hay, Mr. Wickham, Mr. Botts, Mr. Luther Martin, Mr. Randolph and Mr. Lee. The opinion was delivered on Monday, August 31, 1807. A more imposing array of counsel, combining legal 1Parton in his " Life of Burr," chapters XXI, XXVI; Kennedy in his " Life of Wirt," vol. I, chapters XII, XIV; Magruder in his " Life of Marshall," chapter XI, and Van Santvoord, "Lives of the Chief Justices of the United States," page 364, give satisfactory accounts of this famous trial, intended mainly for the non-professional reader. 2 Van Santvoord, "Lives of the Chief Justices of the United States," pages 366 and 367. Ex parte Bollman and Swar/wout. and oratorical ability of the first order, has perhaps never participated in the trial of any cause, civil or criminal, in any court. To the counsel for the defendant must be added Burr himself, who took an active part in the discussion of various questions arising in the case. His consuinmate skill and ability are shown alike in the line of defense adopted and in his terse, clear and forcible arguments. The editor takes the liberty of quoting from a note of Judge Dillon to him concerning this opinion, "That nowhere does Marshall's greatness as a judicial magistrate shine with greater lustre than in his rulings and decisions in this famous case. It shows that he was as great in the discussion of cases and authorities as in the discussion and enforcement of legal principles, and his opinion, given immediately after the close of the arguments, with only the intervention of Sunday, is as remarkable in its way as the charge of Chief Justice Cockburn in the Tichborne case, and it conclusively refutes the opinion sometimes hastily expressed that Marshall was not a thorough, trained and consummate lawyer in the technical learning of the law." Ex parte Bollman and Swartwout. FEBRUARY TERM, 1807. [4 Cranch's Reports, 75-137.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: If an offense be committed on land, the offender must be tried by the court having jurisdiction over that territory where the offense was committed. Marshall's Constitutional Opinions. 5 54 Under the fourteenth section of the Judiciary Act, this court has power to issue a writ of habeas corpus to examine into the cause of a commitment by the Circuit Court for the District of Columbia. It is the revision of a decision of an inferior court, confining a person for trial, and therefore is the exercise of appellate jurisdiction. To constitute treason war must be actually levied. A conspiracy to subvert the government by force is not treason. If a body of men be actually assembled for the purpose of effectingr by force a treasonable design, all who perform any part, however minute, and however remote from the scene of action, and who are actually leagued in the general conspiracy, are traitors. The mere enlistment of men, who are not assembled, is not a levying of war. An affidavit made before one magistrate may justify a commitment by another. Facts in the case Erick IBoliman and Samuel Swartwout, being implicated with Burr in a treasonable conspiracy against the United States, by affidavits of General Wilkinson and others, were committed to prison by the Circuit Court for the District of Columbia. Charles Lee and R. G. ilarper moved the Supreme Court of the United States for a writ of habeas corpus1I directed to the Marshal of the District of Columbia, ordering him to bring Swartwout and Bollman before the Th office of this writ is to bring any person in confinement before the proper couit, and calls upon the one who holds the person in durance to show the ground whereon he does so. To move the court for a rule or writ is merely to ask for it. 55 Ex parle Bollman and Swariwout. Supreme Court, that the cause of their commitment might be inquired into. The first question was whether the Supreme Court had the power to grant a writ of habeas corpus in such a case. The court decided that it had such power, Justice Johnson dissenting. On the other question involved the majority of the court held that there was not sufficient evidence of a levying of war against the United States to justify the commitment of Swartwout on the charge of treason, and against Bollman there was still less testimony. The court further stated there was no doubt that both the prisoners were engaged in a most culpable enterprise against the dominions of a power at peace with the United States, and guilty, therefore, of a high misdemeanor, but no part of this crime having been committed in the District of Columbia the unanimous opinion of the court was that they could not be tried in that district. The Chief Justice in the opinion which he gave goes at length into the question of treason, defining it, and showing what is necessary to constitute that crime, and he also minutely examines and discusses what is necessary to complete the crime of levying war against the United States. The following is the opinion of the court: Opinion. 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice. WILLIAM CUSHING, SAMUEL CHASE, BUSHROD WASHINGTON Associate Justices. WILLIAM JOHNSON, BROCKHOLST LIVINGSTON, 3 Justices Cushing and Chase were absent on account of ill health. Charles Lee and R. G. Harper appeared for Bollman and Swartwout. respectively, and F. S. Key and Luther Martin were associated with them. C. A. Rodney, Attorney-General, and Walter Jones, Attorney for the District of Columbia, on behalf of the prosecution. Marshall's Constitutional Opinions. MARSHALL, Chief Justice. As preliminary to any investigation of the merits of this motion, this court deems it proper to declare that it disclaims all jurisdiction not given by the Constitution, or by the laws of the United States. Courts which originate in the common law possess a Jurisdiction of courts, jurisdiction which must be regulated how regulated, by their common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction. It is unnecessary to state the reasoning on which this opinion is founded, because it has been repeatedly given by this court; and with the decisions heretofore rendered on this point no member of the bench has, even for an instant, been dissatisfied. The reasoning from the bar in relation to it may be answered by the single observation, that for the meaning of the term habeas corpus resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States must be given by written law. This opinion is not to be considered as abridging the power of courts over their own officers, or to protect themselves and their members from being disturbed in the exercise of their functions. It extends only to the power of taking cognizance of any question between individuals, or between the government and individuals To enable the court to decide on such Power to issue habeas corpus must be given question, the power to determine it by statute. must be givei by written law. The inquiry, therefore, on this motion will be, whether by any statute, compatible with the Constitution of the United States, the power to award a writ of habeas corpus, in such a case as that of Erick Bollman and Samuel Swartwout, has been given to this court. 57 P7Ex parte Bollman and Swarlwout. The fourteenth section of the judicial act (Laws U. S., vol. I, p. 58) has been considered as containing a substantive grant of this power. It is in these words: "That all the before mentioned courts of the United States shall have power to issue writs of scirefacias, habeas corpus, and all other writs, not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.' And that either of the justices of the Supreme Court, as well as judges of the District Courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." The only doubt of which this section can be susceptible is, whether the restrictive words of the first sentence limit the power to the award of such writs of habeas corpus as are necessary to enable the courts of the United States to exercise their respective jurisdictions in some cause which they are capable of finally deciding. It has been urged that, in strict grammatical construction, these words refer to the last antecedent, which is, "all other writs not specially provided for by statute." This criticism may be correct, and is not entirely without its influence; but the sound construction which the court thinks it safer to adopt is, that the true sense of the words is to be determined by the nature of the provision, and by the context. 1 Kent, Com. (12th ed.), I, 300, d, 301 und note 1; Cooley, Const. Lim. 47 and note 2. Marshall's Constitutional Opinions. 58 It may be worthy of remark that this act was passed by the first Congress of the United States, sitting under a Constitution which had declared "1that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might reqluire it." Acting* under the immediate influence of this injunction they must have felt with peculiar force the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation they give to all the courts the power of awarding writs of habeas corpus. Habeas corpus It has been truly said that this is a generic a generic term term, and includes every species of that writ. To this it may be added that, when used singrly,- when we say the writ of habeas corpus, without addition,- we most generally mean that great writ which is now applied for; and in that sense it is used in the Constitution. The section proceeds to say that "1either of the justices of the Supreme Court, as well as judges of the District Courts, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment." It has been argued that Congrress could never intend to give a power of this kind to one of the judges of this court which is refused to all of them when assembled. There is certainly much force in this argument, and it receives additional strength from the consideration that if the power be denied to this court it is denied to every other court of the United States; the right to grant this 59 Ex parle Bollman and Swarlwout. important writ is given in this sentence to every judge of the Circuit or District Court, but can neither be exercised by the Circuit nor District Court. It would be strange if the judge, sitting on the bench, should be unable to hear a motion for this writ where it might be openly made and openly discussed, and might yet retire to his chambers and in private receive and decide upon the motion. This is not consistent with the genius of our legislation, nor with the course of our judicial proceedings. It would be much more consonant with both that the power of the judge at his chambers should be suspended during his term than that it should be exercised only in secret. Whatever motives might induce the Legislature to withhold from the supreme court the power to award the great writ of habeas corpus, there could be none which would induce them to withhold it from every court in the United States; and as it is granted to all in the same sentence and by the same words, the sound construction would seem to be that the first sentence vests this power in all the courts of the United States; but as those courts are not always in session, the second sentence vests it in every justice or judge of the United States. The doubt which has been raised on this subject may be further explained by examining the character of the various writs of habeas corpus, and selecting those to which this general grant of power must be restricted, if taken in the limited sense of being merely used to enable the court to exercise its jurisdiction in causes which it is enabled to decide finally. The various writs of habeas corpus, Various writs of haas stated and accurately defined by Judge Blackstone (Commentaries, vol. 3, p. 129), are, 1st. Marshall's Constitutional Opinions. 60 The writ of habeas corpus ad respondendum, " when a man hath a cause of action against one who is confined by the process of some inferior court; in order to remove the prisoner and charge him with this new action in the court above." This case may occur when a party having a right to sue in this court (as a State at the time of the passage of this act, or a foreign minister) wishes to institute a suit against a person who is already confined by the process of an inferior court. This confinement may be either by the process of a court of the United States, or of a State court. If it be in a court of the United States, this writ would be inapplicable, because perfectly useless, and consequently could not be contemplated by the Legislature. It would not be required, in such case, to bring the body of the defendant actually into court, and he would already be in the charge of the person who, under an original writ from this court, would be directed to take him into custody, and would already be confined in the same jail in which he would be confined under the process of this court, if he should be unable to give bail. If the party should be confined by process from a State court, there are many additional reasons against the use of this writ in such a case. The State courts are not, in any sense of the word, inferior courts, except in the particular cases in which an appeal lies from their judgment to this court; and in these cases the mode of proceeding is particularly prescribed, and is not by habeas corpus. They are not inferior courts because they emanate from a different authority, and are the creatures of a distinct government. 2d. The writ of habeas corpus ad satisfaciendum, " when a prisoner hath had judgment against him in an 61 Ex parle Bollman and Swartwout. action, and the plaintiff is desirous to bring him up to some superior court to charge him with process of execution." This case can never occur in the courts of the United States. One court never awards execution on the judgment of another. Our whole juridical system forbids it. 3d. Ad prosequendum, testificandum, deliberandum, etc., " which issue when it is necessary to remove a prisoner, in order to prosecute, or bear testimony, in any court, or to be tried in the proper jurisdiction wherein the fact was committed." This writ might unquestionably be employed to bring up a prisoner to bear testimony in a court, consistently with the most limited construction of the words in the act of Congress; but the power to bring a person up that he may be tried in the proper jurisdiction is understood to be the very question now before the court. 4th, and last. The common writ ad faciendum et recipiendum, " which issues out of any of the courts of Westminster Hall, when a person is sued in some inferior jurisdiction, and is desirous to remove the action into the Superior Court, commanding the inferior judges to produce the body of the defendant, together with the day and cause of his caption and detainer (whence the writ is frequently denominated an habeas corpus cumn causa), to do and receive whatever the King's Court shall consider in that behalf. This writ is grantable of common right, without any motion in court, and it instantly supersedes all proceedings in the court below." Can a solemn grant of power to a court to award a writ be considered as applicable to a case in which that writ, if issuable at all, issues by law without the leave of the court? Marshall's Conistitutional Opinions. 62 It would not be difficult to demonstrate that the writ of h4abeas corpus cum causa cannot be the particular writ contemplated by the Legislature in the section under consideration; but it will be sufficient to observe generally, that the same act prescribes a different mode for bringing into the courts of the United States suits brought in a State court against a person having a right to claim the jurisdiction of the courts of the United States. He may, on his first appearance, file his petition and authenticate the fact, upon which the cause is ipsofacto removed into the courts of the United States. The only power, then, which on this limited construction would be granted by the section under consideration, would be that of issuing writs of habeas corpus ad testificandum. The section itself proves that this was not the intention of the Legislature. It concludes with the following proviso: "That writs of habeas corpus shall in no case extend to prisoners in gaol unless where they are in custody under or by color of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." This proviso extends to the whole section. It limits the powers previously granted to the courts, because it specifies a case in which it is particularly applicable to the use of the power by courts: -where the person is necessary to be brought into court to testify. That construction cannot be a fair one which would make the Legislature except from the operation of a proviso, limiting the express grant of a power, the whole power intended to be granted. From this review of the extent of the power of awarding writs of habeas corpus, if the section be construed in its restricted sense; from a comparison of the nature of 63 Ex parle Bollman and Swarwvout. the writ which the courts of the United States would, on that view of the subject, be enabled to issue; from a comparison of the power so granted with the other parts of the section, it is apparent that this limited sense of the term cannot be that which was contemplated by the Legislature. But the thirty-third section throws much light upon this question. It contains these words: "And upon all arrests in criminal cases bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the Supreme or a Circuit Court, or by a justice of the Supreme Court, or a judge of a District Court, who shall exercise their discretion therein, regarding the nature and circumstances of the offense, and of the evidence, and of the usages of law." The appropriate process of bringing up a prisoner, not committed by the court itself, to be bailed is by the writ now applied for. Of consequence, a Habeas corpus the appropriate process in court possessing the power to bail pris- this cause. oners not committed by itself may award a writ of habeas corpus for the exercise of that power. The clause under consideration obviously proceeds on the supposition that this power was previously given, and is explanatory of the fourteenth section. If, by the sound construction of the act of Congress, the power to award writs of habeas corpus in order to examine into the cause of commitment is given to this court, it remains to inquire whether this be a case in which the writ ought to be granted. The only objection is, that the commitment has been made by a court having power to commit and to bail. Against this objection the argument from the bar has been so conclusive that nothing can be added to it. Marshall's Constitutional Opinions. 64 If then this were res inlegra, the court would decide in favor of the motion. But the question is considered as case of United States long since decided. The case of Hamv. Hamilton expressly ilton is expressly in point in all its in point. parts; and although the question of jurisdiction was not made at the bar, the case was several days under advisement, and this question could not have escaped the attention of the court. From that decision the court would not lightly depart. (United States v. Hamilton, 3 Dallas's Reports, 17.) If the act of Congress gives this court the power to award a writ of habeas corpus in the present case, it remains to inquire whether that act be compatible with the Constitution. In the mandamus case (Mlarbury v. Madison, 1 Cranch's Reports, 175) it was decided that this court would not exercise original jurisdiction, except so far as that jurisdiction was given by the Constitution. But so far as that case has distinguished between original and appellate jurisdiction, that which the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court, by which a citizen has been committed to jail. It has been demonstrated at the bar that the question Question brought for- brought forward on a habeas corpus is wardtion baouht ef or- Z ward on a hateas cor- always distinct from that which is inV)us distinct from that -olveti in the cause. volved in the cause itself. The question whether the individual shall be imprisoned is always distinct from the question whether he shall be convicted or acquitted of the charge on which he is to be tried, and therefore these questions are separated, and may be decided in different courts. The decision that the individual shall be imprisoned 66 65 Ex parte Boilman and Swartw'out. must always precede the application for a writ of habeas corpus, and this writ must always be for the purpose of revising that decision, and therefore appellate in its nature. But this point also is decided in Hamilton's case, and in Burford's case.' If at any time the public safety should require the suspension of the powers vested by this act in the courts of the United States, it is for the Legislature to say so. That question depends on political considerations, on which the Leg-islature is to decide. Until the legaislative will be expressed this court can only see its duty and must obey the laws. The motion, therefore, must be granted. The marshal of the district having, in accordance with the writ of habeas corpus, shown the order of the Circuit Court for the committal of the prisoners, Mr. Lee then moved that they should be discharged or admitted to bail; the main grounds for this motion are examined in the opinion of the court, delivered by the Chief Justice in these words: MARSHALL, Chief Justice. The prisoners having been brougrht before this court on a writ of habeas corpus, and the testimony on which they were committed having been fully examined and attentively considered, the court is now to declare the law upon their case. This being a mere inquiry, which, This Is a mere inquiry, without deciding upon guilt, precedes not a prosecution. the institution of a prosecution, the question to be determined is whether the accused shall be discharged or held to trial; and if the latter, in what 1At February term, 1806, in this court. Marshall's Const ituational Opinions. 6 66 place they are to be tried, and whether they shall be confined or admitted to bail. "1If," says a very learned and accurate commentator, "1upon this inquiry, it manifestly appears that no such crime has been committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only is it lawf ul totally to discharge him. Otherwise he must either be com.mitted to prison or given bail." The specific charge brought against the prisoners is treason in levying war against the United States. As there is no crime which can more excite and agitate the passions of men than treason, no charge demnands from the tribunal before which it is made a more deliberate and temperate inquiry. Whether this inquiry be directed to the fact or to the law, none can be more solemn, none more important to the citizen or to the government; none can more affect the safety of both. To prevent the possibility of those calamities which result from the extension of treason to offenses of minor importance, that great fundamental law which defines and limits the various departments of our government has given a rule on the subject, both to the legislature and the courts of America, which neither can be permitted to transcend. "11Treason against the United States shall consist only in levying war against them, or in adheringr to their enemies, giving them aid and comfort." What constitutes trea- To constitute that specific crime for son defined, which the prisoners now before the court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspirlacy is not treason. To conspire to 67 Ex parle Bollman and Swartwout, levy war, and actually to levy war, are distinct offenses. The first must be brought into open action by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that, in a case reported by Ventris and mentioned in some modern treatises on criminal law, it has been determined that the actual enlistment of men to serve against the government does not amount to levying war. It is true that in that case the soldiers enlisted were to serve without the realm, but they were enlisted within it; and if the enlistment for a treasonable purpose could amount to levying war, then war had been actually levied. It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.' But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war. Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society are not to escape punishment because they have not ripened into treason. The wisdom of the Legislature is competent to provide for the case; and the framers of our Constitution, who not only defined and limited the crime, but with jealous 1 See Von Hoist, Constitutional Law of U. S. 155. Marshall's Constitutional Opinions. 6 68 circumspection attempted to protect their limitation by providing that no person should be convicted of it, unless Two witnesses to same on the testimony of two witnesses to overt act or confession in open court neces- the same overt act, or on confession in sary to convict of treason, open court, must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on wvhoml they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation. It is therefore more safe, as well as more consonant to the principles of our Constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition should receive such punishment as the Legislature in its wisdom may provide. Whet n~eesary to To complete the crime of levying war copeetecrime of levyigaaaistleagainst the United States, there must United States.ant h be an actual assemblage of men for the purpose of executing a treasonable design. In the case now before the court, a design to overturn the government of the United States in New Orleans by force would have been unquestionably a design, which, if carried into execution, would have been treason; and the assemblagre of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States; but no conspiracy for this object, no enlist-. ing of men to effect it, would be an actual levying of war. In conformity with the principles now laid down have 69 69 Ex park Boilman and Swarzwout. been the decisions heretofore made by the judges of the United States. The opinions given by Judge Paterson and Judge Iredell in cases before them imply an actual assembling of men, though they rather designed to remark on the purpose to which the force was to be applied than on the nature of the force itself. Their opinions, however, contemplate the actual employment of force. Judge Chase, in the trial of Fries, was more explicit.' He stated the\opinion of the court toJugChs'opnn be, "that, if a body of people conspire in trial of Fries distinand meditate an insurrection to resist of conspiring to levy war and crime of treaor oppose the execution of any statute son. of the United States by force, they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war; and the quantum of the force employed neither lessens nor increases the crime; whether by one hundred, or one thousand, persons is wholly immaterial." "11The court are of opinion," continued Judge Chase on that occasion, "1that a combination or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war; but it is altogether immaterial whether the force used is sufficient to effectuate the object; any force connected with the intention will constitute the crime of levying war.") The application of these general principles to the parI'See United States v. Burr, below, as to Fries case. Marshall's Constitutional Opinions. 7 70 ticular case before the court will depend on the testimony which has been exhibited against the accused. The first deposition to be considered is that of General Eaton. This gentleman connects in one statement the purport of numerous conversations held with Colonel Burr throughout the last winter. In the course of these conversations were communicated various criminal projects which seem to have been revolving in the mind of Gen Eaton's deposi- the projector. An expedition against tion-lBurr's schemeg of Mexico seems to have been the first and an expedition against Mexico. most matured part of his plan, if, indeed, it did not constitute a distinct and separate plan, upon the success of which other schemes still more culpable, but not yet well digested, might depend. Maps and other information preparatory to its execution, and which would rather indicate that it was the immediate object, had been procured, and for a considerable time, in repeated conversations, the whole efforts of Colonel Burr were directed to prove to the witness, who was to have held a high command under him, the practicability of the enterprise, and in explaining to him the means by which it was to be effected. This deposition exhibits the various schemes of Colonel Burr, and its materiality depends on connecting the prisoners at the bar in such of those schemes as were treasonable. For this purpose the affidavit of General Affdaitof enwik-Wilkinson, comprehending, in its body inson objected to as the substance of a letter from Colonel extra-judicial. Burr, has been offered, and was received by the Circuit Court. To the admission of this testimony great and serious objections have been made. It has been urged that it is a voluntary or rather an extra-judicial affidavit, made before a person not appear 71 71 Ex park Boilman and Swar/wout. ing to be a magistrate, and contains the substance only of a letter, of which the original is retained by the person who made the affidavit. The objection that the affidavit is extra-judicial resolves itself into the question whether one magistrate may commit on an affidavit taken before another magistrate. For if he may, an affidavit made as the foundation of a commitment ceases to be extra-judicial, and the person who makes it would be as liable to a prosecution for perjury as if the warrant of commitment had been issued by the magistrate before whom the affidavit was made. To decide that an affidavit made before one magistrate would not justify a commitment by another might in miany cases be productive of great in- Ojcinoerld convenience, and does not appear susceptible of abuse, if the verity of the certificate be established. Such an affidavit seems admissible on the principle that before the accused is put upon his trial all the proceedings are ex parte. The court therefore overrule this objection. That which questions the character of the person who has, on this occasion, administered the oath is next to be considered. The certificate from the office of the Department of State has been deemed insufficient by the counsel for the prisoners, because the law does not require the appointment of magistrates for the Territory of New Orleans to be certified to that office; because the certificate is in itself informal; and because it does not appear that the magistrate had taken the oath required by the act of Congress. The first of these objections is not supported by the law of the case; and the second may be so readily cor 14 Marshall's Constitutional Opinions. 72 rected that the court has proceeded to consider the subject as if it were corrected, retaining, however, any final decision, if against the prisoners, until the correction shall be made. With regard to the third, the magistrate must be presumed to have taken the requisite oaths, since he is found acting as a magistrate. On the admissibility of that part of the affidavit which purports to be as near the substance of the letter from Colonel Burr to General Wilkinson as the latter could Judges dividedinopin- interpret it, a division of opinion has ion conce~ing admi- taken place in the court. Two judges sibility of portion of Burr'sletter. are of opinion that, as such testimony delivered in the presence of the prisoner on his trial would be totally inadmissible, neither can it be considered as a foundation for a commitment. Although in making a commitment the magistrate does not decide on the guilt of the prisoner, yet he does decide on the. probable cause, and a long and painful imprisonment may be the consequence of his decision. This probable cause, therefore, ought to be proved by testimony in itself legal, and which, though from the nature of the case it must be ex parte, ought in most other respects to be such as a court and jury might hear. Two judges are of opinion that, in this incipient stage of the prosecution, an affidavit stating the general purport of a letter may be read, particularly where the person in possession of it is at too great a distance to admit of its being obtained, and that a commitment may be founded on it. Under this embarrassment it was deemed necessary to look into the affidavit for the purpose of discovering whether, if admitted, it contains matter which would 73 Ex parke Bollman and Swartwout. justify the commitment of the prisoners at the bar on the charge of treason. That the Letter from Colonel Burr to General Wilkinson relates to a military enterprise meditated by the former has not been questioned. If If expedition directed this enterprise was against Mexico, it against Mexico it is a high misdemeanor, if would amount to a high misdemeanor; against the U S. it is treason. if against any of the Territories of the United States, or if in its progress the subversion of the Government of the United States in any of their territories was a mean clearly and necessarily to be employed, if such mean formed a substantive part of the plan, the assemblage of a body of men to effect it would be levying war against the United States. The letter is in language which furnishes no distinct view of the design of the writer. The co-operation, however, which is stated to have been secured, points strongly to some expedition against the territories of Spain. After making these general statements the writer becomes rather more explicit and says: "Burr's plan of operations is to move down Burr's plan of operarapidly from the falls on the 15th of tions. November, with the first five hundred or one thousand men in light boats, now constructing for that purp~ose; to be at Natchez between the 5th and 15th of December, there to meet Wilkinson; then to determine whether it will be expedient in the first instance to seize on, or to pass by, Baton Rouge. The people of the country to which we are going are prepared to receive us. Their agents now with Burr say that if we will protect their religion and will not subject them to a foreign power, in three weeks all will be settled." There is no expression in these sentences which would Marshall's Consitlufional Opinions. 74 justify a suspicion that any territory of the United States was the object of the expedition. For what purpose seize on Baton Rouge; why engage Spain against this enterprise if it was designed against the United States? "11 The people of the country to which we are going are prepared to receive us." This language is peculiarly appropriate to a foreign country. It will not be contended that the terms would be inapplicable to a Territory of the United States, but other terms would more aptly convey the idea, and Burr seems to consider himself as giving information of which Wilkinson was not possessed. When it is recollected that he was the governor of a Territory adjoining that which must have been threatened, if a Territory of the United States was threatened, and that he commanded the army a part of which was stationed in that territory, the probability that the information communicated related to a foreign country, it must be admitted, gains strength. "Their agents now with Burr say that if we will protect their religion, and will not subject them to a foreign power, in three weeks all will be settled." This is apparently the language of a people who, from the contemplated change in their political situation, feared for their religion, and feared that they would be made the subjects of a foreign power. That the Mexicans should entertain these apprehensions was natural, and would readily be believed. They were, if the representation made of their dispositions be correct, about to place themselves much in the power of men who professed a different faith from theirs, and who, by making them dependent on England or the United States, would subject them to a foreign power. 75 75 Exparte Boilman and Swartwout. That the people of New Orleans, as a people, 'if really engaged in the conspiracy, should feel the same apprehensions, and require assurances on the same points, is by no means so obvious. There certainly is not in the letter Nothing in letter to Wilkinson to show an delivered to Gen. Wilkinson, so far as enterprise against U. S. that letter is laid before the court, one syllable which has a necessary or a natural reference to an enterprise against any territory of the United States. That the bearer of this letter must be considered as acquainted with its contents is not to be controverted. The letter and his own declaration's evince the fact. After stating himself to have passed through INew York and the western States and Territories, without insinuating, that he had performed on his route any act whatever which was connected with the enterprise, he states their object to be, "1to carry an expedition to the Mexican provinces." This statement may be considered as explanatory of the letter of Col. Burr, if the expressions of that letter could be thought ambiguous. But there are other declarations made by Mr. Swartwout, which constitute the difficulty of this case. On an inquiry from General Wilkinson, he said, "this territory would be revolutionized where the people were ready to join them, and that there would be some seizing, he supposed, at New Orleans." If these words import that the government established by the United States in any of its territories was to be revolutionized by force, although merely as a step to, or a mean of executing, some greater projects, the design was unquestionably treasonable, and any assemblage of men for that purpose would amount to a levying of war. Marshall's Constitutional Opinions. 7 76 But on the import of the words a difference of opinion exists. Some of the judges suppose they refer to the territory against which the expedition was intended; others to that in which the conversation was held. Some consider the words, if even applicable to a territory of the United States, as alluding to a revolution to be effected by the people, rather than by the party conducted bya Col. Burr. But whether this treasonable intention be really imputable to the plan or not, it is admitted that it must have been carried into execution by an open assemblage of men for that purpose, previous to the arrest of the prisoner, in order to consummate the crime as to him; and a majority of the court is of opinion that the conversation of Mr. Swartwout affords no sufficient proof of such assembling. The prisoner stated that "1Col. Burr, with the support of a powerful association extending from New York to New Orleans, was levying an armed body of seven thousand men from the State of New York and the western States and Territories, with a view to carry an expedition to the Mexican Territories." That the association, whatever may be its purpose, is not treason has been already stated. That levying an army may or may not be treason, and that this depends on the intention with which it is levied and on the point to which the parties have advanced, has been also stated. The mere enlisting of men, without assembling them, is not levying war. The question, then, is, whether this evidence proves Col. Burr to have advanced so far in levying an army as actually to have assembled them. It is argued that, since it cannot be necessary that the whole seven thousand men should have assembled, 77 Ex parle Bollman and Swartwout. their commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime. This position is correct, with some qualification. It cannot be necessary that the whole army should assemble, and that the various parts which are to compose it should have combined. But it is necessary that there should be an actual assemblage, and therefore the evidence should make the fact unequivocal. The traveling of individuals to the place of rendezvous would, perhaps, not be sufficient. This would be an equivocal act and has no warlike appearance. The meeting of particular bodies of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage. The particular words used by Mr. Swartwout are that Col. Burr "was levyirng an armed body of seven thousand men." If the term "1levying " in this place imports that they were assembled, then such fact would amount, if the intention be against the United States, to levying war. If it barely imports that he was enlisting or engaging them in his service, the fact would not amount to levying war. It is thought sufficiently apparent that the latter is the sense in which the term was used. The fact alluded to, if taken in the former sense, is of a nature so to force itself upon the public view, that, if the army had then actually assembled, either together or in detachments, some evidence of such assembling would have been laid before the court. The words used by the prisoner in reference to seizing at New Orleans, and borrowing, perhaps, by force, from the bank, though indicating a design to rob, and conse Marshall's Constitutional Opinions. 7 78 quently importing a high offense, do not designate the specific crime of levying war against the United States. It is therefore the opinion of a majority of the court Not sufficient evidence that in the case of Samuel Swartwout to commit either Boll- there is not sufficient evidence of his man or Swartwout on charge of treason, levying war against the United States to justify his commitmnent on the charge of treason. Against Erick ol~olman there is still less testimony. Nothing has been said by him to support the charge that the enterprise in which he was engaged had any other object than was stated in the letter of Colonel Burr. Against him, therefore, there is no evidence to support a charge of treason. That both of the prisoners were engaged in a most culpable enterprise against the dominions of a power at peace with the United States, those who admit the affidavit of General Wilkinson cannot doubt. But that no part of this crime was committed in the District of Columbia is apparent. It is therefore the unanimous opinion of the court that they can-not be tried in this District. The law read on the part of the prosecution is understood to apply only to offenses committed on the high seas, or in any river, haven, basin, or bay, not within the jurisdiction of any particular State. In those cases there is no court which has particular cognizance of the crime, and therefore the place in which the criminal shall be apprehended, or, if he be apprehended where no court has exclusive jurisdiction, that to which he shall be first brought, is substituted for the place in which the offense was committed. But in this case a tribunal for the trial of the offense, wherever it may have been committed, had been provided by Con gress; and at the place where the prisoners were 79 Ex parle Bollman and Swar/woult seized by the authority of the commander-in-chief, there existed such a tribunal. It would, too, be extremely dangerous to say that, because the prisoners were apprehended, not by a civil magistrate, but by the military power, there could be given by law a right to try the persons so seized in any place which the General might select, and to which he might direct them to be carried. The act of Congress which the prisoners are supposed to have violated describes as offenders those who begin, or set on foot, or provide, or prepare, the means for any military expedition or enterprise to be carried on from thence against the dominions of a foreign prince or state with whom the United States are at peace. There is a want of precision in the description of the offense which might produce some difficulty in deciding what cases would come within it. But several other questions arise which a court consisting of four judges finds itself unable to decide, and therefore, as the crime with which the prisoners stand charged has not been committed, the court can only direct them to be discharged. This is done with the less reluctance because the discharge does not acquit them from the offense which there is probable cause for supposing they have committed; and if those whose duty it is to protect the nation, by prosecuting offenders against the laws, shall suppose those who have been charged with treason to be proper objects for punishment, they will, when possessed of less exceptionable testimony, and when able to say at what place the offense has been committed, institute fresh proceedings against them. NOTEM It was earnestly urged on the part of the United States in the Burr trial that the decision in the prior Marshall's Constitutional Opinions. 80 case of Bollman and Swartwout in respect to treason was extra-judicial and delivered on a point not argued. (See the opinion of Marshall in the United States v. Burr, infra.) The foregoing opinion was the subject of much discussion by counsel in the subsequent trial of Burr for treason at Richmond, Virginia, in 1807, and Chief Justice Marshall made an interesting explanation as to the reason why the opinion in Bollman and Swartwout took the shape it did. (See references to Marshall Memorial at end of this note.) Wilson's Works, II, 416 et seq., and note on Treason, 422; Tucker on Const., II, 619, 621, 647; Thorpe, Const. Hist. of the U. S., I, 527, 528. "Bollman after turning State's evidence and refusing a pardon vainly attempted to practise medicine in New Orleans, but soon followed Burr to England. Returning to the United States in the midst of the banking excitement, he rose into temporary notice as the author of 'Paragraphs on Banks;' and then again went back to London. Swartwout lived to become collector of the port of New York, and to rob the Treasury of the United States of more than a million dollars." McMaster, Hist. of People of U. S., III, 87, 88. The decision of the Supreme Court in the case of Bollman and Swartwout in respect to treason was claimed by counsel for the United States to be "contrary to law and not obligatory because it was extra-judicial and was delivered on a point not argued." Referring to this contention Marshall says: "It is true that in that case, after forming the opinion that no treason could be committed because no treasonable assemblage had taken place, the court might have dispensed with proceeding further in the doctrines of treason. But it is to be remembered that the judges might act separately, and perhaps at the same time, on the various prosecutions which might be instituted, and that no appeal lay from their decisions. Opposite judgments on the point would have presented a state of things infinitely to be deplored by all. It was not surprising, then, that they should have made some attempt to settle principles which would probably occur and which were in some degree connected with the point before them." See also Dillon, Introduction to Marshall Memorial, I, xxix, xxx. 81 Ex parte Bollman and Sweartwout. In the cases of Bollman and Swartwout in the Supreme Court, and in the trial of Aaron Burr in this [Virginiaj Circuit, he sets bounds to the doctrine of constructive treasons. Hon. Horace Gray, Marshall Memorial, I, 71. He defined the law of treason. Eon. John Bassett Moore, Ib., 1, 517, 518. Ex parte Bollman and Swartwout and the United States v. Burr, wherein he gave the definition of treason in the sense of the Constitution. Charles J. Bonaparte, Esq., Ib., II, 16. Numerous propositions of importance were decided in this case. Chef Justwce John A. Shauck, Ib., II, 228. 6 United States v. Aaron Burr. U. S. Circuit Court, District of Virginia, Summer Term, 1807. [4 Cranch's Reports, Appendix, 470-507.] In connection with this case of Boliman and Swartwout we give the following opinion of Chief Justice Marshall, as delivered at the trial of Aaron Burr, before the United States Circuit Court for the district of Virginia, on the 31st of August, 1807. Certain acts which were supposed to amount to treason having been proved, evidence was offered for the purpose of connecting Colonel Burr with those who committed these acts, he having been at a great distance from the scene of action, in another Federal District and State; this evidence was objected to as irrelevant, and upon the question of its admission the Chief Justice gave the opinion of the court1 on August 31, 1807, as follows: MARSHALL, Chief Justice. The question now to be decided has been argued in a manner worthy of its Opinion..0 importance, and with an earnestness evincing the 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice; CYRUS GRIFFIN, District Judge. This opinion here printed closes the second volume of the Washington edition of the shorthand report of David Robertson of Burr's trial, 1808, and is at page 401 of the second volume of the Philadelphia edition of 1808. It is also contained in the Appendix to 4 Cranch's Reports, which is the copy here followed. Judge Cyrus Griffin, District Judge, sat with Chief Justice Marshall on the trial. 83 83 United States v. Aaron Bar,-. strong conviction felt by the counsel on each side that the law is with them.1 A degree of eloquence seldom displayed on any occasion has embellished a solidity of argument and a depth of research by which the court has been greatly aided in forming the opinion it is about to deliver. The testimony adduced on the part of the United States to prove the overt act laid in the indictment having, shown, and the attorney for theBurntpentwn United States having, admitted, that the overt act committed prisoner was not present when the act, whatever may be its character, was committed, and there being no reason to doubt but that he was at a great distance, and in a different State, it is objected to the testimony offered on the part of the United States, to connect him with those who committed the overt act, that such testimony is totally irrelevant, and must therefore be rejected. The arguments in support of this motion respect in part the merits of the case as it may be supposed to stand indepe~ndent of the The merits of the case pleadings, and in part as exhibited by pleadings.n o h the pleadings. On the first division of the subject two points are made. 1st. That, conformably to the Constitution of the United States, no man can be convicted of treason who was not present when the war was levied. 2d. That, if this construction be erroneous, no testimony can be received to charge one man with the overt I'Counsel for the United States: Caesar A. Rodney, Attorney General; George Hay, District Attorney for the district of Virginia; Alexander MacRae, William Wirt. Counsel for Burr: Edmund Randolph, John Wickham, Luther Martin, Benjamin Botts, Charles Lee. Marshall's Conistitutional Opinions. 8 84 acts of others, until those overt acts, as laid in the indictment, be proved to the satisfaction of the court. The question which arises on the construction of the Constitution, in every point of viewv in which it can be contemplated, is of infinite moment to the people of this country and to their government, and requires the most temperate and the most deliberate consideration. "11Treason against the United States shall consist only in levying war against them." What is the natural import of the words "1levying war?" Treso aaint he And who may be said to levy it? ilad U.S.coosst olyin~ their first application to treason been made by our Constitution, they would certainly have admitted of some latitude of construction. Taken most literally, they are, perhaps, of the same import with the words raisingý or creating war; but as those who join after the commencement are equally the objects of punishment, there would probably be a general admission that the term also comprehended making war, or carrying on war. In the construction which courts would be required to give these words, it is not improbable that those who should raise, create, make, or carry on war, mighbt be comprehended. The various acts which would be considered as coming within the term would be settled by a course of decisions, and it would be affirming boldly to say that those only who actually constituted a portion of the military force appearing in arms could be considered as levying war. There is no difficulty in affirming, that there must be a war, or the crime of levying- it can not exist; but there would often be considerable difficulty in affirmingr that a particular act did or did not involve the person committing it in the guilt and in the fact of levyingu war. If, for example, an army should be 85 85 United States v. Aaron Burr. actually raised for the avowed purpose of carry-ing on open war against the United States and subverting their government, the point must be weighed very deliberately before a judge would venture to decide that an overt act of levying war had not been committed by a commissary of purchases who never saw the army, but who, knowing its object, and leaguing, himself with the rebels, supplied that army with provisions, or by a recruiting officer holding a commission in the rebel service, who, though never in camp, executed the particular duty assigned to him. But the term is not for the first time Term "levying war" appled t trasonby he Cnsttutin nt for first time apap~~~~~~ ~~~plied to treason by theCosiuon etoraonbth of the United States. It is a technical Constitution term. It is used in a very old statute of that country whose language is our language, and whose laws form the substratum of our laws. It is scarcely conceivable that the term was not employed by the framers of our Constitution in the sense which had been affixed to it by those from whom we borrowed it. So far as the meaning of any terms, particularly terms of art, is completely ascertained, those by whom they are employed must be considered as employing them in that ascertained meaning, unless the contrary be proved by the context. It i's therefore reasonable to suppose, unless it be incompatible with other expressions of the Constitu- Term "levying war" tion, that the term "1levying war " is to be understood in same sense as in 25 used in that instrument in the same Edw. MI sense in which it was understood in England and in this country to have been used in the statute of the twentyfifth of Edward III., from which it was borrowed. It is said that this meaning is to be collected only from adjudged cases. But this position cannot be conceded to the extent in which it is laid down. The superior au. Marshall's Constitutional Opinions. 86 thority of adjudged cases will never be controverted. But those celebrated elementary writers who have stated the principles of the law, whose statements have received the common approbation of legal men, are not to be disregfarded. Principles laid down by such writers as Coke, Hale, Foster, and Blackstone are not lightly to be rejected. These books are in the hands of every student. Legal opinions are formed upon them, and those opinions are afterwards carried to the bar, the bench, and the legislature. In the exposition of terms, therefore, used in instruments of the present day, the de-finitions and the dicta of those authors, if not contradicted by adjudications, and if compatible with the words of the statute, are entitled to respect. It is to be regretted that they do not shed as much light on this part of the subject as is to be wished. Coke does not give a complete definition of the term, Coke's definition in- but puts cases which amount to levycomplete. ing war. "An actual rebellion or insurrection," he says, "1is a levying of war." In whom? Coke does not say whether in those only who appear in arms, or in all those who take part in the rebellion or insurrection by real open deed. hale, in treating on the same subject, puts many cases Hale is also not dell- Which shall constitute a levying of war, n1ite without which no act can amount to treason; but he does not particularize the parts to be performed by the different persons concerned in that war Which shall be sufficient to fix on each the guilt of levying it. Foster says: "1The joining with rebels in an act of reFoster's definition of bellion, or with enemies in acts of levying war hostility, will make a man a traitor." 87 United States v. Aaron Burr. "Furnishing rebels or enemies with money, arms, ammunition, or other necessaries will primafacie make a man a traitor." Foster does not say that he would be a traitor under the words of the statute, independent of the legal rule which attaches the guilt of the principal to an accessory, nor that his treason is occasioned by that rule. In England this discrimination need not be made except for the purpose of framing the indictment, and therefore in the English books we do not perceive any effort to make it. Thus, surrendering a castle to rebels, being in confederacy with them, is said by Hale and Foster to be treason under the clause of levying war; but whether it be levying war in fact or aiding those who levy it, is not said. Upon this point Blackstone is not more Blackstone also unsatsatisfactory. Although we may find isfactory on this subject. among the commentators upon treason enough to satisfy the inquiry, What is a state of internal war? yet no precise information can be acquired from them which would enable us to decide with clearness whether persons not in arms, but taking part in a rebellion, could be said to levy war, independent of that doctrine which attaches to the accessory the guilt of his principal. If in adjudged cases this question has been taken up and directly decided, the court has not seen those cases. The arguments which may be drawn from the form of the indictment, though strong, are not conclusive. In the precedent found in Tremaine, Mary Case of Mary Speake Speake, who was indicted for furnish- in England. ing provisions to the party of the Duke of Monmouth, is indicted for furnishing provisions to those who were levying war, not for levying war herself. It may cor Marshall's Constitutional Opinions. 8 88 rectly be argued that, had this act amounted to levying war, she would have been indicted for levying war, and the furnishing of provisions would have been laid as the overt act. The court felt this when the precedent was produced. But the argument, though strong, is not conclusive, because in England the inquiry whether she had become a traitor by levying war, or by giving aid and comfort to those who were levying war, was unimportant, and because, too, it does not appear from the indictment that she was actually concerned in the rebellion, that she belonged to the rebel party, or was guilty of anything further than a criminal speculation in selling them provisions. It is not deemed necessary to trace the doctrine, that Docrie hatintra-in treason all are principals, to its son all are principals: source. Its origin is most probably Judge Tucker's statement of its origin, stated correctly by Judge Tucker, in a work the merit of which is with pleasure acknowledged. But if a spurious doctrine has been introduced into the common law, and has for centuries been admitted as genuine, it would require great hardihood in a judge to reject it. Accordingly, we find those of the English jurists who seenm to disapprove the principle declaringZ1 that it is now too firmly settled to be shaken. It is unnecessary to trace this doctrine to its source, for another reason. The terms of the Constitution comprise no question respecting principal and accessory, so far as either may be truly and in fact said to levy war. Whether in England a person would be indicted in express terms for levying war, or for assisting others in levying war, yet if, in correct and legal language, heA can be said to have levied war, and if it has never been decided that the act would not amount to levying war, 89 United States v. Aaron Burr. his case may, without violent construction, be brought within the letter and the plain meaning of the Constitution. In examining these words, the argument which may be drawn from felonies, as, for example, Argument drawn from from murder, is not more conclusive. felonies inconclusive. Murder is the single act of killing with malice aforethought. But war is a complex operation composed of many parts co-operating with each other. No one man, or body of men, can perform them all, if the war be of any continuance. Although, then, in correct and in lawlanguage, he alone is said to have murdered another who has perpetrated the fact of killing, or has been present aiding that fact, it does not follow that he alone can have levied war who has borne arms. All those who perform the various and essential military parts of prosecuting the war, which must be assigned to different persons, may with correctness and accuracy be said to levy war. Taking this view of the subject, it appears to the court that those who perform a part Whether doctrine of in the prosecution of the war may cor- aPrinoilndacesrectly be said to levy war, and to corn- so mit treason under the Constitution. It will be observed that this opinion does not extend to the case of a person who performs no act in the prosecution of the war, who counsels and advises it, or who, being engaged in the conspiracy, fails to perform his part. Whether such persons may be implicated by the doctrine that whatever would make a man an accessory in felony makes him a principal in treason, or are excluded, because that doctrine is inapplicable to the United States,- the Constitution having declared that treason shall consist only in Marshall's Constitutional Opinions. 90 levying war, and having made the proof of overt acts necessary to conviction,-is a question of vast importance, which it would be proper for the Supreme Court to take a fit occasion to decide, but which an inferior tribunal would not willingly determine, unless the case before them should require it. It may now be proper to notice the opinion of the SuThat portion of opin- preme Court in the case of the United ion in Bolman and States against Bollman and SwartSwartwout's Case S which defines treason said to be extra-judi- Wout. It is said that this opinion, in cial and obiter. declaring that those who do not bear arms may yet be guilty of treason, is contrary to law, and is not obligatory, because it is extra-judicial, and was delivered on a point not argued.' This court is therefore required to depart from the principle there laid down. It is true that in that case, after forming the opinion that no treason could be committed, because no treasonable assemblage had taken place, the court might have dispensed with proceeding further in the doctrines of Reason for discussing treason. But it is to be remembered thRe ason for discussing ineBoilan tand Swart that the judges might act separately, wouts case and perhaps at the same time, on the various prosecutions which might be instituted, and that no appeal lay from their decisions. Opposite judgments on the point would have presented a state of things infinitely to be deplored by all. It was not surprising, then, that they should have made some attempt to settle principles which would probably occur, and which were in some degree connected with the point before them. The court had employed some reasoning to show that without the actual embodying of men war could not be 1 See note to Bollman and Swartwout, ante. 91 91 United Sflaes v. Aaron Burr. ievied. It might have been inferred from this that those only who were so embodied could be guilty of treason. Not only to exclude this inference, but also to affirm the contrary, the court proceed to observe, 11It is not the intention of the court to say that no individual can be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable object, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.") This court is told that if this opinion be incorrect it ought not to be obeyed, because it was extra-judicial. For myself, I can say that I could not lightly be prevailed on to disobey it, were I even convinced that it was erroneous; but I would certainly use any means which the law placed in my power to carry the question again before the Supreme Court, for reconsideration, in a case in which it would directly occur and be fully argued. The court which gave this opinion was composed of four judges. At the time I thought them unanimous; but I have since had reason to suspect that one of them, whose opinion is entitled to great re- Oiini aeo ol spect, and whose indisposition pre- man and Swartwout correct. vented his entering into the discussions on some of those points which were not essential to the decision of the very case under consideration, did not concur in this particular point with his brethren. Had the opinion been unanimous, it would have been given by a majority of the judges. But should the three who were absent concur with that judge who was present, and Marshall's Constitutional Opinions. 9 92 who perhaps dissents from what was then the opinion of the court, a majority of the judg'es may overrule this decision. I should therefore feel no objection, although I then thought, and still think, the opinion perfectly correct, to carry the point, if possible, again before the Supreme Court, if the case should depend upon it. In saying that I still think the opinion perfectly correct, I do not consider myself as going further than the preceding reasoning goes. Some gentlemen have argued as if the Supreme Court had adopted the whole doctrine of the English books on the subject of accessories to treason. But certainly such is not the fact. Those only Who are traitors-Defi- who perform a part, and who are nition. leagued in the conspiracy, are declared to be traitors. To complete the definition both circumstances must concur. They must "1perform a part " which will furnish the overt act, and they must be "leagrued in the conspiracy." The person who comes within this description, in the opinion of the court, levies war. The present motion, however, does not rest upon this point; for if under this indictment the United States might be let in to prove the part performed by the prisoner, if he did perform any part, the court could not stop the testimony in its present stage. 2d. The second point involves the character of the Second point involves overt act which has been given in evicharacter of overt act. dence, and calls upon the court to declare whether that act can amount to levying, war. Althoug-h the court ought now to avoid any analysis of the testimony which has been offered in this case, provided the decision of the motion should not rest upon it, yet many reasons concur in giving peculiar propriety to a delivery, in the course of these trials, of a detailed opin 93 United States v. Aaron Burr. ion on the question, what is levying war? As this question has been argued at great length, it may probably save much trouble to the counsel now to give that opinion. In opening the case it was contended by the attorney for the United States, and has since been maintained on the part of the prosecution, that neither What is ",levying arms, nor the application of force or vio- war"? lence, are indispensably necessary to constitute the fact of levying war. To illustrate these positions several cases have been stated, many of which would clearly amount to treason. In all of them, except that which was probably intended to be this case, and on which no observation will be made, the object of the assemblage was clearly treasonable; its character was unequivocal, and was demonstrated by evidence furnished by the assemblage itself; there was no necessity to rely upon information drawn from extrinsic sources, or, in order to understand the fact, to pursue a course of intricate reasoning and to conjecture motives. A force is supposed to be collected for an avowed treasonable object, in a condition to attempt that object, and to have commenced the attempt by moving towards it. I state these particulars, because, although the cases put may establish the doctrine they are intended to support, may prove that the absence of arms, or the failure to apply force to sensible objects by the actual commission of violence on those objects, may be supplied by other circumstances, yet they also serve to show that the mind requires those circumstances to be satisfied that war is levied. Their construction of the opinion of the Supreme Court is, I think, thus far correct. It Actual violence not is certainly the opinion which was at necessary to constitute the time entertained by myself and levying war. the time entertained by myself and Marshall's Constitutional Opinions. 9 94 which is still entertained. If a rebel army, avowingo its hostility to the sovereign power, should front that of the government, should march and counter-march before it, should manceuvre in its face, and should then disperse from any cause whatever without firing a gun, I confess I could not without some surprise hear gentlemen seriously contend that this could not amount to an act of levying war. A case equally strong may be put with respect to the absence of military weapons. If the party be in a condition to execute the purposed treason without the usual implements of war, I can perceive no reason for requiring those implements in order to constitute the crime. It is argued that no adjudged case can be produced from the English books where actual violence has not been committed. Suppose this were true. No adjudged case has or, it is believed, can be produced from those books in which it has been laid down that war cannot be levied without the actual application of violence to external objects. The silence of the reporters on this point may be readily accounted for. In cases of actual rebellion against the government the most active and influential leaders are generally most 'actively engaged in the war, and as the object can never be to extend punishment to extermination, a sufficient number are found among those who have committed actual hostilities to satisfy the avenging arm of justice. In cases of constructive treason, such as pulling down meetinghouses, where the direct and avowed object is not the destruction of the sovereign power, some act of violence might be generally required to give the crime a sufficient, degree of malignity to convert it into treason, to render the guilt of any individual unequivocal. 95 United Slates v. Aaron Burr But Vaughan's case is a case where there was no real application of violence, and where the act was adjudged to be treason. Gen- Vaughan's case cited. tlemen argue that Vaughan was only guilty of adhering to the king's enemies, but they have not the authority of the court for so saying. The judges unquestionably treat the cruising of Vaughan as an overt act of levying war. The opinions of the best elementary writers concur in declaring that, where a body of men Opinions of elementary are assembled for the purpose of mak- writers as to what constitutes act of levying ing war against the government, and war are in a condition to make that war, the assemblage is an act of levying war. These opinions are contradicted by no adjudged case, aud are supported by Vaughan's case. This court is not inclined to controvert them. But although in this respect the opinion of the Supreme Court has not been misunderstood on the part of the prosecution, that opinion seems not to have been fully adverted to in a very essential point in which it is said to have been misconceived by others. The opinion, I am informed, has been construed to mean that any assemblage whatever for a treasonable purpose, whether in force, or not in force, whether in a condition to use violence, or not in that condition, is a levying of war. It is this construction, which has not, indeed, been expressly advanced at the bar, but which is said to have been adopted elsewhere, that the court deems it necessary to examine. Independent of authority, trusting only to the dictates of reason, and expounding terms according to their ordinary significa- There must be the emS~ployment of force Or the traitor must be in a tion, we should probably all concur in condition to employ it. Marshall's Constitutional Opinions.,9 96 the declaration that war could not be levied wit'hout the employment and exhibition of force. War is an appeal from reason to the sword, and he who makes the appeal evidences the fact by the use of the means. His intention to go to' war may be proved by words, but the actual going to war is a fact which is to be proved by open deed. The end is to be effected by force; and it would seem that, in cases where no declaration is to be made, the state of actual war could only be created by the employment, of force, or being in a condition to employ it. But the term having been adopted by our Constitution must be understood in that sense in How term was under-0 stood when Constitu- which it was universally received in this tion was framed. country when the Constitution was framed. The sense in which it was received is to be collected from the most approved authorities of that nation from which we have borrowed the term. Lord Coke says that levying war against the king was treason at the common law. "A com passing or conspiracy to levy war," he adds, "1is no treason, for there must be a levying of war in fact." He proceeds to state cases of (Joke's opinion: To constructive levying war, where the levy war themremnust be direct dsg is not to overturn the an assemblage of men dsg in a condition and with an intention to government, but to effect some general employ force. object by force. The terms he employs in stating these cases are such as indicate an impression on his mind that actual violence is a necessary ingredient in constituting the fact of levying war. He then proceeds to say, "1An actual rebellion, or insurrection, is a levying of war within this act." "1If any, with strength and weapons, invasive and defensive, doth hold and defend a castle or fort against the king and his power, this is levying of war agrainst the king." These 97 United States v. Aaron Barr. cases are put to illustrate what he denominates " a war in fact." It is not easy to conceive "an actual invasion or insurrection" unconnected with force, nor can "a castle or fort be defended with strength and weapons invasive and defensive," without the employment of actual force. It would seem, then, to have been the opinion of Lord Coke that to levy war there must be an assemblage of men in a condition and with an intention to employ force. He certainly puts no case of a different description. Lord Hale says (149, 6), " What shall be said a levying of war is partly a question of fact, for it is not every unlawful or riotous assembly of many persons to do an unlawful act, though de facto they Lord Hale's opinion commit the act they intend, that makes of what is necessary to constitute levying war. a levying of war; for then every riot would be treason," etc.; "but it must be such an assembly as carries with it speciem belli, the appearance of war, as if they ride or march, vexillis explicatis, with colors flying, or if they be formed into companies, or furnished with military officers, or if they are armed with military weapons, as swords, guns, bills, halberds, pikes, and are so circumstanced that it may be reasonably concluded they are in a posture of war, which circumstances are so various that it is hard to describe them all particularly." "Only the general expressions in all indictments of this nature that I have seen are more guerrino arraiati, arrayed in a warlike manner." He afterwards adds, "If there be a war levied as is above declared, namely, an assembly arrayed in warlike manner, and so in the posture of war for any treasonable attempt, it is bellum levatum, but not percussum." 7 Marshall's Constitutional Opinions-9 98 It is obvious that Lord Hale supposed an assemblage of men in force, in a military posture, to be necessary to constitute the fact of levying war. The idea he appears to suggest, that the apparatus of war is necessary, has been very justly combated by an able judge who has written a valuable treatise on the subject of treason; but it is not recollected that his position, that the assembly should be in a posture of war for any put y Hwkise. treasonable attempt, has ever been denied. Hawkins (c. 17, ~ 23) says, "That not only those who rebel against the king and take up arms to dethrone him, but also, in many other cases, those who in a violent and forcible manner withstand his lawful authority, are said to levy war against him; and therefore those that hold a fort or castle against the king's 'forces, or keep together armed numbers of men against the king's express command, have been adjudged to levy war against him." The cases put by Hawkins are all cases of actual force and violence. 11Those who rebel against the king and take up arms to dethrone him; " in many other cases, "11those who in a violent and forcible manner withstand his lawful authority; " 1"those that hold a fort or castle against his forces, or keep together armed numbers of men against his express command." These cases are obviously cases of force and violence. Hawkins next proceeds to describe cases in which war is understood to be levied under the statute, although it was not directly made against the government. This Lord Hale terms an interpretative or constructive levying of war, and it will be perceived that he puts no case in which actual force is dispensed with. "11Those also," he says, "1who make an insurrection in United States v. Aaron Burr. order to redress a public grievance, whether it be a real or pretended one, and of their own authority attempt with force to redress it, are said to levy war against the king, although they have no direct design against his person, inasmuch as they insolently invade his prerogative, by attempting to do that by private authority which he by public justice ought to do, which manifestly tends to a downright rebellion. As where great numbers by force attempt to remove certain persons from the kino-"' etc. The cases here put by Hawkins of a constructive levying of war do in terms require force as a constituent part of the description of the offense. Judge Foster, in his valuable treatise on treason, states the opinion which has been quoted Judge Foster's views from Lord Hale, and differs from that in his treatise on treawriter so far as the latter might seem to require swords, drums, colors, etc., what he terms the pomp and pageantry of war, as essential circumstances to constitute the fact of levying war. In the cases of Damaree and Purchase he says, "1The want of those circumstances weighed nothing with the court, although the prisoners' counsel insisted much on that matter." But he adds, The number of the insurgents supplied the want of military weapons; and they were provided with axes, crows, and other tools of the like nature, proper for the mischief they intended to effect. Furor armt ministrat." It is apparent that Judge Foster here alludes to an assemblage in force, or, as Lord Hale terms it, "1in a warlike posture," that is, in a condition to attempt or proceed upon the treason which had been contemplated. The.Same author afterwards states at large the cases of Damaree and Purchase, from 8th State Trials, and they Marshall's Constitutional Opinions. 100 are cases where the insurgents not only assembled in force, in the posture of war, or in a condition to execute the treasonable design, but they did actually carry it into execution, and did resist the guards who were sent to disperse them. Judge Foster states (~ 4) all insurrections to effect certain innovations of a public and general concern by an armed force to be, in construction of law, high treason within the clause of levying war. The cases put by Foster of constructive levying of war all contain, as a material ingredient, the actual employment of force. After going through this branch of his subject, he proceeds to state the law in a case of actual levying of war, that is, where the war is intended directly against the government. He says (~ 9), "An assembly armed and arrayed in a warlike manner for a treasonable purpose is bellum Judge Foster's views levatum, though not bellum percussum. Listing and marching are sufficient overt acts without coming to a battle or action. So cruising on the king's subjects under a French commission, France being then at war with us, was held to be adhering to the king's enemies, though no other act of hostility be proved." "An assembly armed and arrayed in a warlike manner for any treasonable purpose" is certainly in a state of force; in a condition to execute the treason for which they assembled. The words "enlisting and marching," which are overt acts of levying war, do, in the arrangement of the sentence, also imply a state of force, though that state is not expressed in terms; for the succeeding words, which state a particular event as not having happened, prove that event to have been the next circumstance to those which had happened; they are, "without 101 United States v. Aaron Burr. coming to a battle or action." " If men be enlisted and march " (that is, if they march prepared for battle, or in a condition for action, for tionfmarching is a technical term applied to the movement of a military corps), it is an overt act of levying war, though they do not come to a battle or action. This exposition is rendered the stronger by what seems to be put in the same sentence as a parallel case with respect to adhering to an enemy. It is cruising under a commission from an enemy, without committing any other act of hostility. Cruising is the act of sailing in warlike form, and in a condition to assail those of whom the cruiser is in quest. This exposition, which seems to be that intended by Judge Foster, is rendered the more certain by a reference to the case in the State Trials from which the extracts are taken. The words used by case from the State the Chief Justice are, "When men form Trials cited: ctual force not necessary to themselves into a body, and march constitutelevying war. rank and file with weapons offensive and defensive, this is levying of war with open force, if the design be public." Mr. Phipps, the counsel for the prisoner, afterwards observed, "Intending to levy war is not treason, unless a war be actually levied." To this the Chief Justice answered, "Is it not actually levying of war, if they actually provide arms and levy men, and in a warlike manner set out and cruise, and come with a design to destroy our ships?" Mr. Phipps still insisted, " It would not be an actual levying of war unless they committed some act of hostility." " Yes, indeed," said the Chief Justice, " the going on board, and being in a posture to attack the king's ships." Mr. Baron Powis added, " But for you to say that because they did not actually fight it is not a levying of war, is it not plain what they did in Marshall's Constitutional Opinions.10 102 tend? That they came with that intention, that they came in that posture, that they, came armed, and had guns and blunderbusses, and surrounded the ship twice; they came with an armed force, that is a strong evidence of the design."~ The point insisted on by counsel in the case of Vaughan, But a warlike posture as in this case, was, that war could indlispensable, not be levied without actual fighting. In this the counsel was very properly overruled; but it is apparent that the judges proceeded entirely on the idea that a warlike posture was indispensable to the fact of levying war. Judge Foster proceeds to give other instances of levying war. "1Attacking the king's forces in opposition to his authority, upon a march, or in quarters, is levying war." "11Holding a castle or fort against the king or his forces, if actual force be used in order to keep ossin is levying war. But a bare detainer, as suppose by shutting the gates against the king or his forces, without any other force from within, Lord Hale conceiveth will not amount to treason." The whole doctrine of Judge Foster on this subject seems to demonstrate a clear opinion that a state of force and violence, a posture of war, must exist, to -constitute technically, as well as really, the fact of levying war. Blaksones pinon Judg'e Blackstone seems to concur with his predecessors. Speaking of levying war he says: "1This may be done by taking arms not only to dethrone the king, but under pretense to reform religion, or the laws, or to remove evil counsellors, or other grievances whether real or pretended. For the law does not, neither can it, permit any private man or 103 United States v. Aaron Burr. set of men to interfere forcibly in matters of such high importance." He proceeds to give examples of levying war which show that he contemplated actual force as a necessary ingredient in the composition of this crime. It would seem, then, from the English authorities, that the words "levying war " have not received a technical, different from their natural meaning, so far as respects the character of the assemblage of men which may constitute the fact. It must be a warlike assemblage carrying the appearance of force, and in a situation to practice hostility. Several judges of the United States have given opinions at their circuits on this subject, all Opinions of United of which deserve and will receive the itesjudts aocernin particular attention of this court. lvyingwar. In his charge to the grand jury, when John Fries was indicted in consequence of a forcible opposition to the direct tax, Judge Iredell is understood to Judge Iredells opinion. have said, " I think I am warranted in saying that if, in the case of the insurgents who may come under your consideration, the intention was to prevent by force of arms the execution of any act of the Congress of the United States altogether, any forcible opposition calculated to carry that intention into effect was a levying of war against the United States, and of course an act of treason." To levy war, then, according to this opinion of Judge Iredell, required the actual exertion of force. Judge Paterson, in his opinions delivered in two different cases, seems not to differ from Judge Paterson's opinJudge Iredell. He does not indeed pre- ion. cisely state the employment of force as necessary to Marshall's Coatstitutional Opinions. 104 constitute a levying of war, but in giving his opinion in cases in which force was actually employed, he considers the crime in one case as dependent on the intention, and in the other case he says, "Combining these facts with this design" (that is, combining actual force with a treasonable design), "the crime is high treason." Judge Peters has also indicated the opinion that force was necessary to constitute the crime Judge Peters' opinion,.flvigwr of levying war. Judge Chase has been particularly clear and explicit. In an opinion which he appears to Judge Chase's opinion. have prepared on great consideration he says: "The court are of opinion, if a body of people conspire and meditate an insurrection to resist or oppose the execution of a statute of the United States by force, that they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war; and the quantum of the force employed neither increases nor diminishes the crime; whether by one hundred or one thousand persons is wholly immaterial. "The court are of opinion that a combination or conspiracy to levy war against the United States is not treason, unless combined with an attempt to carry such combination or conspiracy into execution; some actual force or violence must be used in pursuance of such design to levy war; but that it is altogether immaterial whether the force used be sufficient to effectuate the object. Any force connected with the intention will constitute the crime of levying of war." In various parts of the opinion delivered by Judge Chase, in the case of Fries, the same sentiments are to 105 United States v. Aaron Burr. be found. It is to be observed that these judges are not content that troops should be assembled in a condition to employ force. According to them some degree of force must have been actually employed. The judges of the United States, then, so far as their opinions have been quoted, seem to have required still more to constitute the fact of levying war than has been required by the English books. Our judges seem to have required the actual exercise of force, the actual employment of some degree of violence. This, however, may be, and probably is, because in the cases in which their opinions were given the design not having been to overturn the government, but to resist the execution of a law, such an assemblage would be sufficient for the purpose, as to require the actual employment of force to render the object unequivocal. But it is said all these authorities have been overruled by the decision of the Supreme Court in the case of the United States against Swartwout and Bollman. If the Supreme Court have, indeed, extended the doctrine of treason further than it has No intention in decisNo intention in decisheretofore been carried by the judges on in case of Swartwout and Bollman to of England or of this country, their de- depart fsrom thepreceor dents in cases of ti eacision would be submitted to. At least sonbylevyingwai. this court could go no further than to endeavor again to bring the point directly before them. It would, however, be expected that an opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms. A mere implication ought not to prostrate a principle which seems to have been so well established. Had the intention been entertained to make so material a change in this respect, the court ought to have ex Marshall's Constitutional Opinions. 106 pressly declared that any assemblage of men whatever who had formed a treasonable design, whether in force or not, whether in a condition to attempt the design or not, whether attended with warlike appearances or not, constitutes the fact of levying war. Yet no declaration to this amount is made. Not an expression of the kind is to be found in the opinion of the Supreme Court. The foundation on which this argument rests is the omission of the court to state that the assemblage which constitutes the fact of levying war ought to be in force, and some passages which show that the question respecting the nature of the assemblage was not in the mind of the court when the opinion was drawn, which passages are mingled with others which at least show that there was no intention to depart from the course of the precedents in cases of treason by levying war. Every opinion, to be correctly understood, ought to be considered with a view to the case in which it was delivered. In the case of the United Bollman and Swartwout's case distinguish- States against Bollman and Swartwout, able from present case. there was no evidence that even two men had ever met for the purpose of executing the plan in which those persons were charged with having participated. It was therefore sufficient for the court to say that unless men were assembled war could not be levied. That case was decided by this declaration. The court might, indeed, have defined the species of assemblage which would amount to levying of war; but as this opinion was not a treatise on treason, but a decision of a particular case, expressions of doubtful import should be construed in reference to the case itself; and the mere omission to state that a particular circumstance was necessary to the consummation of the crime ought not 107 United States v. Aaron Burr. to be construed into a declaration that the circumstance was unimportant. General expressions ought not to be considered as overruling settled principles without a direct declaration to that effect. After these preliminary observations the court will proceed to examine the opinion which has occasioned them. The first expression in it bearing on the present question is, "To constitute that specific crime Opinion in Bollman and for which the prisoners now before the swartwout's case critically examined. court have been committed, war must be actually levied against the United States. However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war, and actually to levy war, are distinct offenses. The first must be brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed." Although it is not expressly stated that the assemblage of men, for the purpose of carrying into operation the treasonable intent which will amount to levying war, must be an assemblage in force, yet it is fairly to be inferred from the context, and nothing like dispensing with force appears in this paragraph. The expressions are, "( To constitute the crime, war must be actually levied." A conspiracy to levy war is spoken of as 1" a conspiracy to subvert by force the government of our country." Speaking in general terms of an assemblage of men for this or for any other purpose, a person would naturally be understood as speaking of an assemblage in some degree adapted to the purpose. An assemblage to subvert by force the government of our country, and amounting to a levying of war, should be an assemblage in force. Marshall's Constitutional Opinions. 108S In a subsequent paragraph the court says, "It is not the intention of the court to say that no individual can Idem. be guilty of this crime who has not appeared in arms against his country. On the contrary, if war be actually levied, that is, if a body of men be actually assembled in order to effect by force a treasonable purpose, all those who perform any part, however minute, etc., and who are actually leagued in the general conspiracy, are traitors. But there must be an actual assembling of men for the treasonable purpose to constitute a levying of war." The observations made on the preceding paragraph apply to this. " A body of men actually assembled, in order to effect, by force, a treasonable purpose," must be a body assembled with such appearance of force as would warrant the opinion that they were assembled for the particular purpose; an assemblage to constitute an actual levying of war should be an assemblage with such appearance of force as would justify the opinion that they met for the purpose. This explanation, which is believed to be the natural, certainly not a strained explanation of the words, derives Idem. some additional aid from the terms in which the paragraph last quoted commences: "It is not the intention of the court to say that no individual can be guilty of treason who has not appeared in arms against his country." These words seem to obviate an inference which might otherwise have been drawn from the preceding paragraph. They indicate that in the mind of the court the assemblage stated in that paragraph was an assemblage in arms; that the individuals who composed it had appeared in arms against their country; that is, in other words, that the assemblage was a military, a warlike assemblage. 109 United States v. Aaron Burr. The succeeding paragraph in the opinion relates to a conspiracy, and serves to show that force and violence were in the mind of the court, and that there was no idea of extending the crime of treason by construction beyond the constitutional definition which had been given of it. Returning to the case actually before the court, it is said: "A (design to overturn the government of the United States in New Orleans by force would have been unquestionably a design which if carried into execution would have been treason, and the assemblage of a body of men for the purpose of carrying it into execution would amount to levying of war against the United States." Now what could reasonably be said to be an assemblage of a body of men for the purpose of overturning the government of the United States in New Orleans by force'? Certainly an assemblage in force; an assemblagoe prepared and intending to act with force; a military asscmblage. The decisions theretofore made by the judges of the United States are then declared to be All the opinions of the in conformity with the principles laid United States judges contemplate an assemdown by the Supreme Court. Is this blageoin forceoas essential to levying war declaration compatible with the idea of departing from those opinions on a point within the contemplation of the court? The opinions of Judge Paterson and Judge Iredell are said "to imply an actual assembling of men, though they rather designed to remark on the purpose to which the force was to be applied than on the nature of the force itself." This observation certainly indicates that the necessity of an assemblage of men was the particular point the court Marshall's Constitutional Opinions. 110 meant to establish, and that the idea of force was never separated from this assemblage. The opinion of Judge Chase is next quoted with approbation. This opinion in terms requires the employment of force. After stating the verbal communications said to have been made by Mr. Swartwout to General Wilkinson, the court says: " If these words import that the government of New Orleans was to be revolutionized by force, although merely as a step to or a means of executing some greater projects, the design was unquestionably treasonable, and any assemblage of men for that purpose would amount to a levying of war." The words "any assemblage of men," if construed to affirm that any two or three of the conspirators who might be found together, after this plan had been formed, would be the act of levying war, would certainly be misconstrued. The sense of the expressions, "any assemblage of men," is restricted by the words "for that purpose." Now could it be in the contemplation of the court that a body of men would assemble, for the purpose of revolutionizing New Orleans by force, who should not themselves be in force? After noticing some difference of opinion among the judges respecting the import of the words said to have been used by Mr. Swartwout, the court proceeds to obFurther consideration serve: " But whether this treasonable Bf opniond Sewarse intention be really imputable to the wout plan or not, it is admitted that it must have been carried into execution by an open assemblage for that purpose, previous to the arrest of the prisoner, in order to consummate the crime as to him." Could the court have conceived " an open assemblage" ill 111 United States v. A aron Burr "11for the purpose of overturning the government of New Orleans by force ""1to be only equivalent to a secret, furtive assemblage without the appearance of force?" After quoting the words of Mr. Swartwout from the affidavit, in which it was stated that Mr. Burr was levying an army of seven thousand men, and observing that the treason to be inferred from these words would depend on the intention with which it was levied, and on the progress which had been made in levying it, the court say, "1The question, then, is, whether this evidence proves Colonel Burr to have advanced so far in levying an army as actually to have assembled them." Actually to assemble an army of seven thousand men is unquestionably to place those who are so assembled in a state of open force. But as the mode of expression used in this passage might be misconstrued, so far as to countenance the opinion that it would be necessary to assemble the whole army in order to constitute the fact of levying war, the court proceeds to say, 11It is argued that, since it cannot be necessary that the whole seven thousand men should be assembled, their commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime. "11This position is correct with some qualification. It cannot be necessary that the whole army There must be an actshould assemble, and that the various uai assemblage, having parts which are to compose it shouldthaperneowr have combined. But it is necessary there should be an actual assemblagge; and therefore the evidence should make the fact unequivocal. "11The traveling of individuals to the place of rendezvous would, perhaps, not be sufficient. This would be an Marshall's Constitulicnal Opinions. 112 equivocal act, and has no warlike appearance. The meeting of particular bodies of men, and their marching from places of partial to a place of general rendezvous, would be such an assemblage." The position here stated by the counsel for the prosecution is, that the army "commencing its march by detachments to the place of rendezvous (that is, of the army) must be sufficient to constitute the crime." This position is not admitted by the court to be universally correct. It is said to be "correct with some qualification." What is that qualification? "The traveling of individuals to the place of rendezvous" (and by this term is not to be understood one individual by himself, but several individuals, either separately or together, but not in military form) "1would, perhaps, not be sufficient." Why not sufficient? "Because," says the court, "this would be an equivocal act and has no warlike appearance." The act, then, should be unequivocal and should have a warlike appearance. It must exhibit, in the words of Sir Matthew Hale, qeciem belli, the appearance of war. This construction is rendered in some measure necessary, when we observe that the court is qualifying the position, "that the army commencing their march by detachments to the place of rendezvous must be sufficient to constitute the crime." In qualifying this position they say, "1The traveling of individuals would, perhaps, not be sufficient." Now, a solitary individual traveling to any point, with any intent, could not, without a total disregard of language, be termed a marching detachment. The court, therefore, must have contemplated several individuals traveling together; and the words, being used in reference to the position they were in United States v. Aaron Biifr; tended to qualif'y, would seem to indicate the distinction between the appearances attending the usual movement of a company of men for civil purposes, and that military movement which might, in correct language, be denominated "1marching by detachments." The court then proceeded to say: "1The mneetingr of particular bodies of men, and their marching from places of a partial to a place of general rendezvous, would be such an assemblage." It is obvious, from the context, that the court must have intended to state a case which woul initsef b uneuivcalbecuseOpinion in Boilman woul initsef b uneuivcalbecuseand Swartwout's case it would have a warlike appearance.f rh cnied The case stated is that of distinct bodies of men assembling at different places, and marching from these places of partial to a place of general rendezvous. When this has been done an assemblage is produced which would in itself be unequivocal. But when is it done? What is the assemblage here described? The assemblage formed of the different bodies of partial at a general place of rendezvous. In describing the mode of coming to this assemblage the civil term" traveling " is dropped and the military term "1marching" is employed. If this was intended as a definition of an assemblage which would amount to levying war, the definition requires an asseinblag~e at a general place of renZn Example of an assem. dezvous, composed of bodies of men blage amounting to a who had previously assembled at places levying of war. of partial rendezvous. But this is not intended as a definition; for, clearly, if there should be no places of partial rendezvous, if troops should embody in the first instance, in great force, for the purpose of subverting the government by violence, the act would be unequivocal, it would 8 Marshall's Constitutional Opinions. 114 have a warlike appearance, and it would, according to the opinion of the Supreme Court properly construed, and according to the English authorities, amount to levying war. But this, though not a definition, is put as an example, and surely it may be safely taken as an example. If different bodies of men, in pursuance of a treasonable design plainly proved, should assemble in warlike appearance at places of partial rendezvous, and should march from those places to a place of general rendezvous, it is difficult to conceive how such a transaction could take place without exhibiting the appearance of war, without an obvious display of force. At any rate, a court in stating generally such a military assemblage as would amount to levying war, and having a case before them in which there was no assemblage whatever, cannot reasonably be understood in putting such an example to dispense with those appearances of war which seem to be required by the general current of authorities. Certainly they ought not to be so understood when they say in express terms that "It is more safe as well as more consonant to the principles of our Constitution, that the crime of treason should not be extended by construction to doubtful cases; and that crimes not clearly within the constitutional definition should receive such punishment as the legislature in its wisdom may provide." After this analysis of the opinion of the Supreme Court, it will be observed that the direct quesOpinion in Bollman and Swartwout's case tion, whether an assemblage of men further considered which might be construed to amount to a levying of war must appear in force or in military form, was not in argument or in fact before the court, and does not appear to have been in terms decided. 115 United States v. Aaron Burr. The opinion seems to have been drawn without particularly adverting to this question, and therefore, upon a transient view of particular expressions, might inspire the idea that a display of force, that appearances of war, were not necessary ingredients to constitute the fact of levying war. But upon a more intent and more accurate investigation of this opinion, although the terms "force " and " violence " are not employed as descriptive of the assemblage, such requisites are declared to be indispensable, as can scarcely exist without the appearance of war and the existence of real force. It is said that war must be levied in fact; that the object must be one which is to be effected by force; that the assemblage must be such as to prove that this is its object; that it must not be an equivocal act, without a warlike appearance; that it must be an open assemblage for the purpose of force. In the course of this opinion decisions are quoted and approved which require the employment of force to constitute the crime. It seems extremely difficult, if not impossible, to reconcile these various declarations with the idea that the Supreme Court considered a secret, unarmed meeting, although that meeting be of conspirators, and although it met with a treasonable intent, as an actual levying of war. Without saying that the assemblage must be in force or in warlike form, they express themselves so as to show that this idea was never discarded, and they use terms which cannot be otherwise satisfied. The opinion of a single judge certainly weighs as nothing, if opposed to that of the Supreme Court; but if he was one of the judges who assisted in framing that opinion, if while the impression under which it was framed was yet fresh upon his mind, he delivered an Marshall's Constitutional Opinions. 116 Idem. opinion on the same testimony, not contradictory to that which had been given by alt. the judges together, but showingr the sense in which he understood terms that might be differently expounded, it may fairly be said to be in some measure explanatory of the opinion itself. To the judge before whom the charge against the prisoner at the bar was first brought the same testimony was offered with that which had been exhibited before the Supreme Court, and he was required to give an opinion in almost the same case. Upon this occasion he said, "War can only be levied by the employment of actual force. Troops must be embodied, men must be assembled, in order to levy war." Again, he observed, "1The fact to be proved in this case is an act of public notoriety. It must exist in the view of the world, or it cannot exist at all. The assembling of forces to levy war is a visible transaction, and numbers must witness it." It is not easy to doubt what kind of assemblage was in the m-ind of the judge who used these expressions, and it is to be recollected that he had just' returned from the Supreme Court, and was speaking on the very facts on which the opinion of that court was delivered. The same judge, in his charge to the grand jury who Charge of judge to found this bill, observed, "1To constigrand jury who found o eyn ti indictment in present tu te the facto evigwaritisnot case.necessary that hostilities shall have actually commenced by engaging the military force of the United States, or that measures of violence against the government shall have been carried into execution. But levying war is a fact in the constitution of which force is an indispensable ingredient. Any combination to subvert by force the government of the United States, 117 Uni'ed States v. Aaron Burr. violently to dismember the Union, to compel a change in the administration, to coerce the repeal or adoption of a general law, is a conspiracy to levy war; and if the conspiracy be carried into effect by the actual employment of force, by the embodying and assembling of men for the purpose of executing the treasonable design which was previously conceived, it amounts to levying of war. It has been held that arms are not essential to levying war, provided the force assembled be sufficient to attain, or perhaps to justify attempting, the object without them." This paragraph is immediately followed by a reference to the opinion of the Supreme Court. It requires no commentary upon these words to show that, in the opinion of the judge who Assemblage of men in uttered them, an assemblage of men forite necessary to conwhich should constitute the fact of war. levying war must be an assemblage in force, and that he so understood the opinion of the Supreme Court. If in that opinion there may be found in some passages a want of precision, and indefiniteness of expression, which has occasioned it to be differently understood by different persons, that may well be accounted for, when it is recollected that in the particular case there was no assemblage whatever. In expounding that opinion the whole should be taken together, and in reference to the particular case in which it was delivered. It is, however, not improbable that the misunderstanding has arisen from this circumstance. The court, unquestionably, did not consider arms as an indispensable requisite to leyying war; an assemblage adapted to the object might be in a condition to effect or to attempt it without them. Nor did the court consider the actual application of the force to the object, at all times, an indispensable requisite; for Marshall's Constitutional Opinions. 118 an assemblage might be in a condition to apply force, might be in a state adapted to real war, without having made the actual application of that force. From these positions, which are to be found in the opinion, it may have inferred, it is thought too hastily, that the nature of the assemblage was unimportant, and that war might be considered as actually levied by any meeting of men, if a criminal intention can be imputed to them by testimony of any kind whatever. It has been thought proper to discuss this question at large, and to review the opinion of the Supreme Court, although this court would be more disposed to Idem. leave the question of fact, whether an overt act of levying war was committed on Blennerhassett's Island, to the jury, under this explanation of the law, and to instruct them that, unless the assemblage on Blennerhassett's Island was an assemblage in force, was a military assemblage in a condition to make war, it was not a levying of war, and that they could not construe it into an act of war, than to arrest the further testimony which might be offered to connect the prisoner with that assemblage, or to prove the intention of those who assembled together at that place. This point, however, is not to be understood as decided. It will. perhaps, constitute an essential inquiry in another case. Before leaving the opinion of the SuWhy is an assemblage absolutely required to preme Court entirely, on the question constitute act of levying war. of the nature of the assemblage which will constitute an act of levying war, this court cannot forbear to ask, Why is an assemblage absolutely required? Is it not to judge, in some measure, of the end by the proportion which the means bear to the end? Why is it that a single armed individual, entering a boat 119 119 United States v. Aaron Burr. and sailingr down the Ohio, for the avowed purpose of attacking New Orleans, could not be said to levy war? Is it not that he is apparently not in a condition to levy wvar? If this be so, ought not the assemblage to furnish some evidence of its intention and capacity to levy war before it can amount to levying war? And ought not the Supreme Court, when speaking of an assemblage f or the purpose of effecting a treasonable object by force, be understood to indicate an assemblag~e exhibiting the appearance of force? The definition of the attorney for the United States deserves notice in this respect. It is, "1When there is an assemblage of men convened for the purpose of effecting by force a treasonable object, which force is meant to be employed before the assemblage disperses, this is trecason." To read this definition without adverting to the argument, we should infer that the assemblage was itself to effect by force the treasonable object, not to join itself to some other bodies of men, and then to effect the object by their combined force. Under this construction it would be expected the appearance of the assemblage would bear some proportion to the object, and would indicate the intention; at any rate, that it would be an assemublage in force. This construction is most certainly not that ivhich was intended, but it serves to show that general phrases must always be understood in reference to the subject-matter, and to the general principles of law. On that division of the subject which respects the merits of the case connected with the plead- The merits of the case connected with the ings, two points are also made. pleadings Marshall's Constitutional Opinions. 120 1st. That this indictment, having charged the prisoner with levying war on Blennerhassett's Island, and containing no other overt act, cannot be Absence of prisoner from Blennerassett's supported by proof that war was levied Island when overt act was committed. at that place by other persons, in the absence of the prisoner, even admitting those persons to be connected with him in one common treasonable conspiracy. 2d. That, admitting such an indictment could be supConviction of person ported by such evidence, the previous sentialomnttto fi conviction of some person who conanother as accessory mitted the act which is said to amount to levying war is indispensable to the conviction of a person who advised or procured that act. As to the first point, the indictment contains two counts, one of which charges that the prisoner, with a number of persons unknown, levied war on Blennerhassett's Island, in the county of Wood, in the district of Virginia; and the other adds the circumstance of their proceeding from that island down the river, for the purpose of seizing New Orleans by force. In point of fact, the prisoner was not on Blennerhassett's Island, nor in the county of Wood, nor in the district of Virginia. In considering this point, the court is led first to inquire whether an indictment for levying war must specify an overt act, or would be Indictment for levying war must specifyovert sufficient if it merely charged the act. prisoner in general terms with having levied war, omitting the expression of place or circumstance. The place in which a crime was committed is essential 121 United,jtates v. Aaron Burr. to an indictment, were it only to show the jurisdiction of the court. It is also essential for Place in which crime the purpose of enabling the prisoner to committed essential to an indictment make his defense. That at common Taw an indictment would have been defective, which did not mention the place in which the crime was committed, can scarcely be doubted. For this it is sufficient to refer to Hawkins, b. 2, c. 25, ~ 84, and c. 23, ~ 91. This necessity is rendered the stronger by the constitutional provision that the offender "shall be tried in the State and district wherein the crime shall have been committed," and by the act of Congress which requires that twelve petty jurors, at least, shall be summoned from the county where the offense was committed. A description of the particular manner in which the -war was levied seems also essential, to Description of parenable the accused to make his defense. ticular manner in which war was levied The law does not expect a man to be esseti. prepared to defend every act of his life which may be suddenly and without notice alleged against him. In common justice, the particular fact with which he is charged ought to be stated, and stated in such a manner as to afford a reasonable certainty of the nature of the accusation, and the circumstances which will be adduced against him. The general doctrine on the subject of indictments is full to this point. Foster (p. 149), speaking of the treason of compassing the king's death, says, "From what has been said it followeth that in every indictment for this species of treason, and, indeed, for levying war and adhering to the king's enemies, an overt act must be alleged and proved. For the overt act is the charge to which the prisoner must apply his defense." Marshall's Constitutional Opinions. 122 In page 220 Foster repeats thi's declaration. It is also laid down in Hawkins, b. 8, C. 17, Treason can only be es tablished by p-roof osf 29; 1 Hlate, 121; 1 East, 116, and by overt acts, which must be charged in the in- the other authorities cited, especially dictment. Yaugrhan's case. In corroboration of this opinion, it may be observed that treason can only be established by the proof of overt acts, and that, by the common law, as wvell as by the statute of 7th of William III., those overt acts only which are charged in the indictment can be given in evidence, unless, perhaps, as corroborative testimony after the overt acts are proved. That clause in the Constitution, too, which says that in all criminal prosecutions the accused shall enjoy the right "to be informed of the nature and cause of the accusation," is considered as having a direct bearing on this point. It secures to him such information as wviii enable him to prepare for his defense. It seems, then, to be perfectly clear that it would not be sufficient for an indictment to allegre generally that the accused had levied war against the United States. The charge must be more particularly specified, by laying what is termed an overt act of levying war. The law relative to an appeal, as cited from Stamford, is strongly corroborative of this opinion. If it be necessary to specify the charge in the indictment, it wvould seem to follow, irresistibly, that the charge must be proved as laid. All the authorities which require an overt act require also that this overt act should be proved. Overt act must be The decision in Yaugyhan's case is parproved z ticularly in point. Might it be otherwise, the charge of an overt act would be a mischief instead of an advantage to the accused. It would lead him from 123 United States v. Aaron Burr. the true cause and nature of the accusation, instead of informing him respecting it. But it is contended on the part of the prosecution, that, although the accused had never been Question raised with the party which assembled at Blen- whether doctrine of constructive pi esence nerhassett's Island, and was at the time at time of overt act is applicable. at a great distance, and in a different State, he was yet legally present, and therefore may properly be charged in the indictment as being present in fact. It is therefore necessary to inquire whether in this case the doctrine of constructive presence can apply. It is conceived by the court to be possible that a person may be concerned in a treasonable conspiracy and yet be legally, as well as actually, absent, while some one act of the treason is perpetrated. If a rebellion should be so extensive as to spread through every State in the Union, it will scarcely be contended that every individual concerned in it is legally present at every overt act committed in the course of that rebellion. It would be a very violent presumption indeed, too violent to be made without clear authority, to presume that even the chief of the rebel army was legally present at every such overt act. If the main rebel army, with the chief at its head, should be prosecuting war at one extremity of our territory, say in New Hampshire; if this chief should be there captured and sent to the other extremity for the purpose of trial; if his indictment, instead of alleging an overt act, which was true in point of fact, should allege that he had assembled some small party, which in truth he had not seen, and had levied war by engaging in a skirmish in Georgia, at a time when in reality he was fighting a battle in New Hampshire; if such evidence would support such an indictment, by Marshall's Constitutional Opinions. 124 the fiction that he was legally present, though really absent, all would ask, To what purpose are those provisions in the Constitution which direct the place of trial, and ordain that the accused shall be informed of the nature and cause of the accusation? But that a man may be legally absent who has counseled or procured a treasonable act is proved by all those books which treat upon the subject, and which concur in declaring that such a person is a principal traitor, not because he was legally present, but because in treason all are principals. Yet the indictment upon general principles would charge him according to the truth of the case. Lord Coke says, " If many conspire to Lord Coke quoted. levy war, and some of them do levy the same according to the conspiracy, this is high treason in all." Why? Because all were legally present when the war was levied? No. "For in treason," continues Lord Coke, 1"all be principals, and war is levied." In this case the indictment, reasoning from analogy,would not charge that the absent conspirators were present, but would state the truth of the case. If the conspirator had done nothing which amounted to levying of war, and if by our Constitution the doctrine that an accessory becomes a principal be not adopted, in consequence of which the conspirator could not be condemned under an indictment stating the truth of the case, it would be going very far to say that this defect, if it be termed one, may be cured by an indictment stating the case untruly. This doctrine of Lord Coke has been adopted by all subsequent writers; and it is generally Doctrine of constructive presence further laid down in the English books that considered. whatever will make a man an accessory in felony will make him a principal in treason; but it is no 125 125 United S/ales v. Aaron Burr. where sugfgested that he is by construction to be considered as present when in point of fact he was absent. Foster has been particularly quoted, and certainly he is precisely in point. "1It is well kno wn," says Fse utd Foster, "1that in the language of the law Fse utd there are no accessories in high treason; all are principals. Every instance of incitement, aid, or protection, which in the case of felony will render a man an accessory before or after the fact, in the case of high treason, whether it be treason at common law or by statute, will make him a principal in treason." The cases of incitement and aid are cases put as examples of a man's becoming a principal in treason, not because he was legall 'y present, but by force of that maxim in the common law, that whatever will render a man an accessory at common law will render him a principal in treason. In other passages the words "1command "' or "1procure " are used to indicate the same state of things, that is, a treasonable assemblage procured by a man who is not himself in that assemblage. In point of law, then, the man who incites, aids, or procures a treasonable act is not, merely in consequence of that incitement, aid, or procurement, legally present when that act is committed. If it does not result from the nature of the crime that all who are concerned in it are legally zn Doctrine of constructpresent at every overt act, then each ive presence further examined case depends upon its own circumstances; and to judge how far the circumstances of any case can make him legally present who is in fact absent, the doctrine of constructive presence must be examined. Hale (in his 1st vol. p. 6105) says, "IRegu- Hl utd larly no man can be a principal in felony un Marshall's Constitutional Opinions. 126 less he be present." In the same page he says, "An accessory before is he that, being absent at the time of the felony committed, doth yet procure, counsel, or command another to commit a felony." The books are full of passages which state this to be the law. Foster, in showing what acts of concurrence will make a man a principal, says, "He must be present at the perpetration, otherwise he can be no more than an accessory before the fact." These strong distinctions would be idle, at any rate they would be inapplicable to treason, if they were to be entirely lost in the doctrine of constructive presence. Foster adds (page 349), "When the law Foster quoted requireth the presence of the accomplice at the perpetration of the fact in order to render him a principal, it doth not require a strict, actual, immediate presence, such a presence as would make him an eye or ear witness of what passeth." The terms used by Foster are such as would be employed by a man intending to show the necessity that the absent person should be near at hand, although, from the nature of the thing, no precise distance could be marked out. An inspection of the cases from which Foster drew this general principle will serve to illustrate it. (See Hale, p. 439.) In all these cases put by Hale, the whole party set Cases cited by Hale. out together to commit the very fact charged in the indictment, or to commit some other unlawful act, in which they are all to be personally concerned at the same time and place, and are, at the very time when the criminal fact is committed, near enougb to give actual personal aid and assistance to the man who perpetrated it. Hale (in page 449), giving the reason for the decision in the case of the Lord Dacres, says, "1 They all came with an intent to steal the deer, and con 127 United States v. Aaron Burr. sequently the law supposes that they all came with the intent to oppose all that should hinder them in that de-:sign." The original case says this was their resolution. This opposition would be a personal opposition. This case, even as stated by Hale, would clearly not comprehend any man who entered into the combination, but who, instead of going to the park where the murder was committed, should not set out with the others, should go to a different park, or should even lose his way. (See Hale, p. 534.) In both the cases here stated the persons actually set out together, and were near enough to Cases cited by Hale. assist in the commission of the fact. That in the case of Pudsy the felony was, as stated by Hale, a different felony from that originally intended, is unimportant in regard to the particular principle now under consideration, so far as respected distance; as respected capacity to assist in case of resistance, it is the same as if the robbery had been that which was originally designed. The case in the original report shows that the felony committed was in fact in pursuance of that originally designed. Foster (p. 350) plainly supposes the same particular design, not a general design composed of many particular, distinct facts. He supposes them to be co-operating with respect to that particular design. This may be illustrated by a case which is perhaps common. Suppose a band of robbers confederated for the general purpose of robbing. They set out together, or in parties, to rob a particular individual, and each performs the part assigned to him. Some ride up to the individual and demand his purse, others watch out of sight to intercept those who might be coming to assist the man on whom the robbery is to be committed. Marshall's Constitrtlfonal Oplinions.12 128 If murder or robbery actually take place, all are principals, and all, in construction of law, are present. Bulk suppose they set out at the same time, or at different times, by different roads, to attack and rob different individuals or different companies; to commit distinct acts of robbery. It has never been contended that those w~ho committed one act of robbery, or who failed altog-ether, were constructively present at the act of those who were associated with them in the common object of robbery, who were to share the plunder, but who did not assist at the particular fact. They do, indeed, belong to th egeneral party, but they are not of the particular party which committed this fact. Foster concludes this subject by observing that, "1in order to render a person an accomplice and a principal in felony, he must be aiding and abetting at the fact, or ready to afford assistance if necessary." That is, at the particular fact which is charged, he must be ready to render assistance to those who are committing that particular fact; he must, as is stated by Hawkins, be ready to give immediate and direct assistance. All the cases to be found in the books go to the same point. Let them be applied to that under consideration. Whole question is The whole treason laid in this indictwhether Burr was ment is the levying of war in Blennerletýgally present at e lvyig f wrnassetts sln and the whole question to in Bleuuerhassett'sI Island.which the inquiry of the court is now directed is, whether the prisoner was legally present at that fact. I say this is the whole question, because the prisoner can only be convicted on the overt act laid in the indictment. With respect to this prosecution, it is as if no other overt act existed. If other overt acts can be in 129 United States v. Aaron Burr. quired into, it is for the sole purpose of proving the particular fact charged; it is as evidence of the crime consisting of this particular fact, not as establishing the general crime by a distinct fact. The counsel for the prosecution have charged those engaged in the defense with considering the overt act as the treason, whereas it ought to be considered solely as the evidence of the treason; but the counsel for the prosecution seem themselves not to have sufficiently adverted to this clear principle, that, though the overt act may not be itself the treason, it is the sole act of that treason which can produce conviction. It is the sole point in issue between the parties. And the only division of that point, if the expression be allowed, which the court is now examining, is the constructive presence of the prisoner at the fact charged. To return, then, to the application of the cases. Had the prisoner set out with the party from Beaver for Blennerhassett's Island, or, perhaps, Application of cases had he set out for that place, though cited to present case. not from Beaver, and had arrived in the island, he would have been present at the fact; had he not arrived in the island, but had taken a position near enough to co-operate with those on the island, to assist them in any act of hostility, or to aid them if attacked, the question whether he was constructively present would be a question compounded of law and fact, which would be decided by the jury, with the aid of the court, so far as respected the law. In this case the accused would have been of the particular party assembled on the island, and would have been associated with them in the particular act of levying war said to have been committed on the island. But if he was not with the party at any time before 9 Marshall's Constitutional Opinions. 130 they reached the island; if he did not join them there, or intend to join them there; if his personal co-operation in the general plan was to be afforded elsewhere, at a great distance, in a different State; if the overt acts of treason to be performed by him were to be distinct overt acts,then he was not of the particular party assembled at Blennerhassett's Island, and was not constructively present, aiding and assisting in the particular act which was there committed. The testimony on this point, so far as it has been deEvidence shows that livered, is not equivocal. There is not Burr was not present only n eidence that the accused was at Blennerhassett's o ev Island. of the particular party which assembled on Blennerhassett's Island, but the whole evidence shows he was not of that party. In felony, then, admitting the crime to have been completed on the island, and to have been advised, procured, or commanded by the accused, he would have been incontestably an accessory, and not a principal. But in treason, it is said, the law is otherwise, because the theatre of action is more extensive. This reasoning applies in England as strongly as in the United States. While in 1715 and 1745 the family of Stuart sought to regain the crown they had forfeited, the struggle was for the whole kingdom; yet no man was ever considered as legally present at one place when actually at another; or as aiding in one transaction while actually employed in another. With the perfect knowledge that the whole nation may Proof must be limited be the theatre of action, the English to particular overt acts of levying war with books unite in declaring that he who which prisoner is charged counsels, procures or aids treason is guilty accessorily, and solely in virtue of the common 131 United States v. Aaron Burr law principle that what will make a man an accessory in felony makes him a principal in treason. So far from considering a man as constructively present at every overt act of the general treason in which he may have been concerned, the whole doctrine of the books limits the proof against him to those particular overt acts of levying war with which he is charged. What would be the effect of a different doctrine? Clearly that which has been stated. If a person levying war in Kentucky may be said to be constructively present and assembled with a party carrying on war in Virginia, at a great distance from him, then he is present at every overt act performed anywhere; he may be tried in any state on the continent where any overt act has been committed; he may be proved to be guilty of an overt act laid in the indictment in which he had no personal participation, by proving that he advised it, or that he committed other acts. This is perhaps too extravagant to be in terms maintained. Certainly it cannot be supported by the doctrines of the English law. The opinion of Judge Paterson in Mitchell's case has been cited on this point. (2 Dallas, Opinion of Judge Pat348.) erson in Mitchell's case cited, and facts stated. The indictment is not specially stated; but from the case as reported it must have been either general, for levying war in the county of Alleghany, and the overt act laid must have been the assemblage of men and levying of war in that county, or it must have given a particular detail of the treasonable transactions in that county. The first supposition is the most probable; but let the indictment be in the one form or the other, and the result is the same. The facts of the case are that a Marshall's Constitutional Opinions. 132 large body of men, of whom Mitchell was one, assembled at Braddock's field, in the county of Alleghany, for the purpose of committing acts of violence at Pittsburgh; that there was also an assemblage at a different timne at Couches fort, at which the prisoner also attended. The general and avowed object of that meeting was to concert measures for resisting the execution of a public law. At Couches fort the resolution was taken to attack the house of the inspector, and the body there assemibled marched to that house and attacked it. It was proved, by the competent number of witnesses, that he was at Couches fort armed; that he offered to reconnoitre the house to be attacked; that he marched with the insurgents towards the house; that he was with them after the action, attending the body of one of his comrades -who was killed in it; one witness swore positively that he was present at the burning of the house, and a second witness said that "1it ran in his head that he had seen him there." That a doubt should exist in such a case as this is strong evidence of the necessity that the overt act should be unequivocally proved by two witnesses. But what was the opinion of the judge in this case? Ie.Couches fort and Neville's house being in the same county; the assemblage having been at Couches fort, and the resolution to attack the house having been there taken; the body having, for the avowed purpose, moved, in execution of that resolution, towards the house to be attacked,- he inclined to think that the act of marching was in itself levying war. If it was, then the overt act laid in the indictment was consummated by the assemblage at Couches and the marching from thence, and Mitchell was proved to be guilty by more than two positive witnesses. But without deciding this 133 United States v. Aaron Burr. to be the law, he proceeded to consider the meeting at Couches, the immediate marching to Neville's house, and the attack and burning of the house, as one transaction. Mitchell was proved by more than two positive witnesses to have been in that transaction, to have taken an active part in it, and the judge declared it to be unnecessary that all should have seen him at the same time and place. But suppose not a single witness had proved Mitchell to have been at Couches, or on the march, or at Idem. Neville's. Suppose he had been at the time notoriously absent in a different State. Can it be believed by any person, who observes the caution with which Judge Paterson required the constitutional proof of two witnesses to the same overt act, that he would have said Mitchell was constructively present, and might, on that straining of a legal fiction, be found guilty of treason? Had he delivered such an opinion, what would have been the language of this country respecting it? Had he given this opinion, it would have required all the correctness of his life to strike his name from that bloody list in which the name of Jefferies is enrolled. But to estimate the opinion in Mitchell's case, let its circumstances be transferred to Burr's case. Suppose the body of men assembled in BlennerApplication of Mitchhassett's Island had previously met at el's case to Burr's case. some other place in the same county, and that Burr had been proved to be with them by four witnesses; that the resolution to march to Blennerhassett's Island for a treasonable purpose had been there taken; that he had been seen on the march with them; that one witness had seen him on the island; that another thought he had seen him there; that he had been Marshall's Constitutional Opinions.14 134 seen with the party directly after leaving the island; that this indictment had charged the levying of war in Wood county generally; the cases would then have been perfectly parallel, and the decisions would have been the same. In conformity with principle and with authority, then, the prisoner at the bar was neither legally nor actually Burr neither legally present at Blennerhassett's Island; and nor actually present thI or.sinlndt h at Blennerhasse tts Is- tecuti stronglyinledtth land opinion that, without proving an actual or legal presence by two witnesses, the overt act laid in this indictment cannot be proved. But this opinion is controverted on two grounds. The first is, that the indictment does not charge the prisoner to have been present. The second, that, although he was absent, yet if he caused the assemblage, he may be indicted as being present, and convicted on evidence that he caused the treasonable act. The first position is to be decided by the indictment Construction of the in- itself. The court understands the alledictment on this point. gation differently from the attorney for the United States. The court understands it to be directly charged that the prisoner did assemble with the multitude, and did march with them. Nothing will more clearly test this construction than putting the case into a shape which it 'may possibly take. Suppose the law to be that the indictment would be defective unless it alleged the presence of the person indicted at the act of treason. If upon a special verdict facts should be found which amounted to a levying of war by the accused, and his counsel should insist that he could not be condemned, because the indictment was defective in not 135 United States v. Aaron Burr. charging that he was himself one of the assemblage which constituted the treason, or because it alleged the procurement defectively, would the attorney admit this construction of his indictment to be correct? I am persuaded that he would not, and that he ought not to make such a concession. If, after a verdict, the indictment ought to be construed to allege that the prisoner was one of the assemblage at Blennerhassett's Island, it ought to be so construed now. But this is unimportant; for if the indictment alleges that the prisoner procured the assemblage, that procurement becomes part of the overt act, and must be proved, as will be shown hereafter. The second position is founded on 1 Hale, 214, 288, and 1 East, 127. While I declare that this doctrine contradicts every idea I had ever entertained on the subject of indictments, since it admits that one case may be stated and a very different case may be proved, I will Doctrine that one who acknowledge that it is countenanced by counsels or advises a treasonable ass emthe authorities adduced in its support. bge, though absent, may be indicted as To counsel or advise a treasonable as- eidgeiscta fofLon semblage, and to be one of that assemblage, are certainly distinct acts, and therefore ought not to be charged as the same act. The great objection to this mode of proceeding is, that the proof essentially varies from the charge, in the character and essence of the offense, and in the testimony by which the accused is to defend himself. These dicta of Lord Hale, therefore, taken in the extent in which they are understood by the counsel for the United States, seem to be repugnant to the declarations we find everywhere, Dicta of Lord Hale that an overt act must be laid, and critically examined Marshall's Constitutional Opinions.13 136 must be proved. No case is cited by Hale in support of them, and I am strongly inclined to the opinion that, had the public received his corrected instead of his original manuscript, they would, if not expunged, have been restrained in their application to cases of a particular description. Laid down. generally, and applied to all cases of treason, they are repugnant to the principles for which Hale contends, for which all the elementary writers contend, and from which courts have in no case, either directly reported or referred to in the books, ever departed. These principles are, that the indictment must give notice of the offense, that the accused is only bound to answer the particular charge which the indictment contains, and that the overt act laid is that particular charge. Under such circumstances, it is only doing justice to Hale to examine his dicta, and if they will admit of being understood in a limited sense, not repugnant to his own doctrines, nor to the general principles of law, to understand them in that sense. "If many conspire to counterfeit, or counsel, or abet it, and one of them doth the fact upon that counseling or conspiracy, it is treason in all, and they may be all indicted for counterfeiting generally within the statute, for in such case, in treason, all are principals." This is laid down as applicable singly to the treason of Doctrine restricted by counterfeiting the coin and is not apLord Hale to treason pledby HaletohrteansHd of counterfeiting the pmd et te raos a coinl he designed to apply the principle universally, he would haive stated it as a general proposition; he would have laid it down in treating on other branches of the statute as well as in the chapter respecting the coin; he would have laid it down when treating on in 137 United States v. Aaron Burr. dictments generally. But he has done neither. Every sentiment bearing in any manner on this point, which is to be found in Lord Hale, while on the doctrine of levying war, or on the general doctrine of indictments, militates against the opinion that he considered the proposition as more extensive than he has declared it to be. No court could be justified in extending the dictum of a judge beyond its terms, to cases in which he has expressly treated, to which he has not himself applied it, and on which he, as well as others, has delivered opinions which that dictum would overrule. This would be the less justifiable if there should be a clear legal distinction, indicated by the very terms in which the judge has expressed himself, between the particular case to which alone he has applied the dictum and other cases to which the court is required to extend it. There is this clear legal distinction: " They may," says Judge Hale, "be indicted for counterfeiting generally." But if many conspire to levy war, and some actually levy it, they may not be indicted for levy- Distinction between ining war generally. The books concur dictmentsfor counterfeiting the coins and in declaring that they cannot be so in- forlevying war dieted. A special overt act of levying war must be laid. This distinction between counterfeiting the coins and that class of treasons among which levying war is placed is taken in the statute of Edward III. That statute requires an overt act of levying war to be laid in the indictment, and does not require an overt act of counterfeiting the coin to be laid. If in a particular case, where a general indictment is sufficient, it be stated that the crime may be charged generally according to the legal effect of the act, it does not follow that in other cases, where a general indictment would be insufficient, where an Marshall's Constitutional Opinions.13 138 overt act must be laid, that this overt act need not be laid accordingr to the real fact. Hale, Overt act must be laid according to the real then, is to be reconciled with himself fact and with the general principles of law, only by permitting the limits which he has himself given to his own dictum to remain where be has placed them. In page 238 Hale is speakiing generally of the receiver of a traitor and is stating in what such receiver partakes of an accessory. 1st. "His indictment must be special of the receipt and not generally that he did the thing, which may be otherwise in case of one that is procurer, counselor or consenter." The words "may be otherwise" do not clearly convey the idea that it is universally otherwise. in all cases of a receiver the indictment must be special on the receipt, and not general. The words, it "may be otherwise in case of a procurer," etc., signify that it may be otherwise in all treasons, or that it may be otherwise in Distinction between in- some treasons. If it may be otherwise dictoinents which may state the fact generally in some treasons without contradictand those which must lay it specially mo' the doctrines of Hale himself, as well as of other writers, but cannot be otherwise in all treasons without such contradiction, the fair construction is that Hale used these words in their restricted sense; that he used them in reference to treasons in which a general indictment would lie, not to treasons where a general indictment wvould not lie, but an overt act of the treason must be charged. The two passages of Hale thus construed may, perhaps, be law, and may leave him consistent with himself. It appears to the court to be the fair way of construingol them. These observations relative to the passages quoted 139 United States v. Aaron Burr. from Hale apply to that quoted from East, who obviously copies from Hale, and relies upon his authority. Upon this point, Keeling, 26, and 1 Hale, 626, have also been relied upon. It is stated in both, that, if a man be indicted as a principal and acquitted, Indictments as priecipal and as accessory-- he cannot afterwards be indicted as Distinction. accessory before the fact. Whence it is inferred, not without reason, that evidence of accessorial guilt may be received on such an indictment. Yet no case is found in which the question has been made and decided. The objection has never been taken at a trial and overruled, nor do the books say it would be overruled. Were such a case produced, its application would Keeling and Hale rebe questionable. Keeling says, an ac- ferred to. cessory before the fact is quodam modo, in some manner, guilty of the fact. The law may not require that the manner should be stated, for in felony it does not require that an overt act should be laid. The indictment, therefore, may be general. But an overt act of levying war must be laid. These cases, then, prove, in their utmost extent, no more than the cases previously cited from Hale and East. This distinction between indictments which may state the fact generally, and those which must lay it specially, bear some analogy to a general and a special action on the case. In a general action, the declaration may lay the assumpsit according to the legal effect of the transaction, but in a special action on the case the declaration must state the material circumstances truly, and they must be proved as stated. This distinction also derives some aid from a passage in Hale (p. 625), immediately preceding that which has been cited at the bar. He says, "1If A. be indicted as principal, and B. as accessory before or after, and both be Marshall's Constitutional Opinions. 140 acquitted, yet B. may be indicted as principal, and the former acquittal as accessory is no bar." The crimes, then, are not the same, and may not indifferently be tried under the same indictment. But why is it that an acquittal as principal may be pleaded in Idem bar to an indictment as accessory, while an acquittal as accessory may not be pleaded in bar to an indictment as principal? If it be answered that the accessorial crime may be given in evidence on an indictment as principal, but that the principal crime may not be given in evidence on an indictment as accessory, the question recurs, on what legal ground does this distinction stand? I can imagine only this. An accessory being quodam modo a principal, in indictments, where the law does not require the manner to be stated, which need not be special, evidence of accessorial guilt, if the punishment be the same, may possibly be received; but every indictment as an accessory must be special. The very allegation that he is an accessory must be a special allegation, and must show how he became an accessory. The charges of this special indictment, therefore, must be proved as laid, and no evidence which proves the crime in a form substantially different can be received. If this be the legal reason for the distinction, it supports the exposition of these dicta which has been given. If it be not the legal reason, I can conceive no other. But suppose the law to be as is contended by the counsel for the United States. Suppose an indictment, charging an individual with personally assembling among others, and thus levying war, may be satisfied with the proof that he caused the assemblage. What effect will this law have upon this case? The guilt of the accused, if there be any guilt, does not 141 141 United States v. Aaron Burr. consist in the assemblage, for he was not a member of it. The simple fact of assemblage no more affects one absent man than another. Proof requisite where one is charged with causing an assemblaga His guilt, then, consists in procuringofmnorppsef the assemblage, and upon this fact de- levying war pends its criminality. The proof relative to the character of an assemblage must be the same whether a man be present or absent. In the general, to charge any individual with the guilt of an assemblage, the fact of his presence must be proved. It constitutes an essential part of the overt act. If, then, the procurement be substituted in the place of presence, does it not also constitute an essential part of the overt act? Must it not also be proved? Must it not be proved in the same manner that presence must be proved? If in one case the presence of the individual makes the guilt of the assemblage his guilt, and in the other case the procurement by the individual makes the guilt of the assemblage his guilt, then presence and procurement are equally component parts of the overt act, and equally require two witnesses. Collateral points may, say the books, be proved according to the course of the common 'law - Fact of causing such but is this a collateral point? Is the assemblage cannot be presumed but must be fact without which the accused does positively proved by not participate in the guilt of the as- towtess semblage, if it was guilty, a collateral point? This cannot be. The presence of the party, where presence is necessary, being a part of the overt act, must be positively proved by two witnesses. No presumptive evidence, no facts from which presence may be conjectured or inferred, will satisfy the Constitution and the law. If procurement take the place of presence, and become part of the overt act, then no presumptive evidence, no facts from which Marshall's Constitutional Opinions.14 142 the procurement may be conjectured or inferred, can satisfy the Constitution and the law. The mind is not to be led to the conclusion that the individual was present, by a train of conjectures or inferences, or of reasoning; the fact must be proved by two witnesses. Neither where procurement supplies the want of presence is the mind to be conducted to the conclusion that the accused procured the assembly by a train of conjectures or inferences, or of reasoningo; the fact itself must be proved by two witnesses, and must have been committed within the district. It is said that the advising or procurement of treaBut is one who advises son is a secret transaction which can or p i ocures a treason,screyv poed mnr guilty of treason under screyeer be poe in the mne theContiutin? required by this opinion. The answer which will readily suggest itself is that the difficulty of proving a fact will not justify conviction without proof. Certainly it will not justify conviction without a direct and positive witness in a case where the Constitution requires two. The more correct inference from this circumstance would seem to be that the advising of the fact is not within the constitutional definition of the crime. To advise or procure a treason is in the nature of conspiring, or plotting treason, which is not treason in itself. if, then, the doctrines of Keeling, Hale, and East are to be understood in the sense in which they are pressed by the counsel for the prosecution, and are applicable in the United States, the fact that the accused procured the assemblage on Blennerhassett's Island must be proved, not circumstantially, but positively by two witnesses, to charge him with that assemblage. But there are still other most important considerations, which must be well weighed before this doctrine can be applied to the United States. 143 143 United States v. Aaron Burr. The eighth amendment to the Constitution has been pressed with great force, and it is 'M_ Eighth amendment - Accused must be inpossible not to feel its application to formed of nature and this point. The accused cannot becasofcuatn truly said to be "informed of the nature and cause of the accusation," unless the indictment shall give him that notice which may reasonably suggest to him, the point on which the accusation turns, so that he may know the course to be pursued in his defense. It is also well worthy of consideration that this doctrine, so far as it respects treason, is entirely supported by the operation of the common law, which is said to convert the accessory before the fact into the principal, and to make the act of the principalThprnilsote his act. The accessory before the fac common law of Engis not said to have levied war. He is ln o plcbe not said to be guilty under the statute. But the com.mon law attaches to him the guilt of that fact which he has advised or procured, and, as contended, makes it his act. This is the operation of the common law, not the operation of the statute. It is an operation, then, which can only be performed where the common law exists to perform it. It is the creature of the common law, and the creature presupposes its creator. To decide, then, that this doctrine is applicable to the United States would seem to imply the decision that the United States, as a nation, have a common law which creates and defines the punishment of crimes accessorial in their nature. It would imply the further decision that these accessorial crimes are not in the case of treason excluded by the definition of treason given in the Constitution. I will not pretend that I have not individually an opinion on these points, but it is one which I should give only in a case Marshall's Constitutional Opinions. 144 absolutely requiring it, unless I could confer respecting it with the judges of the Supreme Court. I have said that this doctrine cannot apply to the United f procurement be an States without implying those decisions o ert act of treaot respecting the common law which I must be alleged in the re indictmentandproved have stated, because, should it be true, as is contended, that the constitutional definition of treason comprehends him who advises or procures an assemblage that levies war, it would not follow that such adviser or procurer might be charged as having been present at the assemblage. If the adviser or procurer is within the definition of levying war, and, independent of the agency of the common law, does actually levy war, then the ad visement or procurement is an overt act of levying war. If it be the overt act on which he is to be convicted, then it must be charged in the indictment, for he can only be convicted on proof of the overt acts which are charged. To render this distinction more intelligible, let it be recollected that, although it should be conceded that Idem. since the statute of William and Mlary, he who advises or procures a treason may in England be charged as having committed that treason,- by virtue of the common-law operation, which is said, so far as respects the indictment, to unite the accessorial to the principal offense and permit them to be charged as one,- yet it can never be conceded that he who commits one overt act under the statute of Edward can be charged and convicted on proof of another overt act. If, then, procurement be an overt act of treason under the Constitution, no man can be convicted for the procurement under an indictment charging him with actually assembling, whatever may be the doctrine of the common law in the case of an accessorial offender. 145 145 United States v. Aaron Burr. It may not be improper in this place again to advert to the opinion of the Supreme Court,' Opinioný of Supreme and to show that it contains nothing ollCut in cs of Bollcon trary to the doctrine now laid again adverted to down. That opinion is that an individual may be guilty of treason "1who has not appeared in arms aogainst his country; that, if war be actually levied, that is, if a body of men be actually assembled for the purpose of effecting by force a treasonable object, all those who perform. any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors." This opinion does not touch the case of a person who advises or procures an assemblage, and does nothing further. The advising, certainly, and perhaps the Idem. procuringr, is more in the nature of a conspiracy to levy war than of the actual levying of wvar. Accordingto the opinion it is not enough to be leagued in the conspiracy, and that war be levied, but it is also necessary to perform a part; that part is the act of levying war. This part, it is true, may be minute; it Procuring an assemmay not be the actual appearance in blg mr i atr arms, and it may be remote from the war. scene of action, that is, from the place where the army i& assembled; but it must be a part, and that part must be performed by a person who is leagued in the conspiracy. This part, however minute or remote, constitutes the overt act on which alone the person who performs it can be convicted. The opinion does not declare that the person who has performed this remote and minute part may be Idem. indicted for a part which was in truth performed by others, and convicted on their overt acts. It amounts 10 Marshall's Constilutional Opinions.14 146 to this, and nothing, more: that when war is actually levied, not only those who bear arms, but those also who are leagued in the conspiracy, and who perform the various distinct parts which are necessary for the prosecution of war, do, in the sense of the Constitution, levy war. It may possibly be the opinion of the Supreme Court that those who procure a treason, and do nothing further, are guilty under the Constitution; I only say that opinion has not yet been given; still less has it been indicated that he who advises shall be indicted as having performed the fact. It is, then, the opinion of the court that this indictment Tesimnynecssrycan be supported only by testimony to suppotidcmn which proves the accused to have been of u"ýrtindctmntactually or constructively present when the assemblage took place on Blennerhassett's Island, or by the admission of the doctrine that he who procures an act may be indicted as having performed that act. It is further the opinion of the court that there is no testimony whatever which tends to prove that the accused was actually or constructively present when that assemblage did take place. Indeed, the contrary is most apparent. With respect to admitting proof of procurement to establish a charge of actual. presence, the court is of opinion that, if this be admissible in England on an indictment for levying war, which is far from being conceded, it is admissible only by virtue of the operation of the common law upon the statute, and therefore is not admissible in this country unless by virtue of a similar operation; a point far from being established, but on which, for the present, no opinion is given. If, however, this point be established, still the procurement must be proved in the same manner, and by the same kind of 147 United Slales v. Aaron Burr. testimony, which would be required to prove actual presence. The second point in this division of the subject is the necessity of adducing the record of the previous conviction of some one person who committed the fact alleged to be treasonable. This point presupposes the treason of the accused, if any has been committed, to be accessorial in Proof requisite if alits nature. Its being of this descrip- sleged treason of o~ - itsD =ue be accessorial in tion, according to the British author- its nature. ities, depends on the presence or absence of the accused at the time the fact was committed. The doctrine on this subject is well understood, has been most copiously explained, and need not be repeated. That there is no evidence of his actual or legal presence is a point already discussed and decided. It is, then, apparent that, but for the exception to the general principle which is made in cases of treason, those who assembled at Blennerhassett's Island, if that assemblage was such as to constitute the crime, would be principals, and those who might really have caused that assemblage, although, in truth, the chief traitors, would, in law, be accessories. It is a settled principle in the law that the accessory cannot be guilty of a greater offense t/ znIn felonies guilt of printhan his principal. The maxim is, acces- clmust~ before accessorius sequitur naturam sui }rincipalis; sory can be tried. the accessory follows the nature of his principal. Hence results the necessity of establishing the guilt of the principal before the accessory can be tried. For the degree of guilt which is incurred by counseling or commanding the commission of a crime depends upon the actual commission of that crime. No man is an accessory to murder unless the fact has been committed. Marshall's Constitutional Opinions.14 148 The fact can only be established in a prosecution against the person by whom a crime has been perpetrated. The law supposes a man more capable of Idem. d efendinog his own conduct than any other person, and will not tolerate that the guilt of A. shall be established in a prosecution against B. Consequently, if the guilt of B. depends on the guilt of A., A. must be convicted before B. can be tried. It would exhibit a monstrous deformity, indeed, in our system, if B. might be executed for being accessory to a murder committed by A., and A. should afterwards, upon a full trial, be acquitted of the fact. For this obvious reason, although the punishment of a principal and accessory was originally the same, and although in many insta nces it is still the same, the accessory could in no case be tried before the conviction of his principal, nor can he yet be tried previous to such conviction, unless he requires it, or unless a special provision to that effect be made by statute. If, then, this was a felony, the prisoner at the bar could not be tried until the crime was established by the conviction of the person by whomn it was actually perpetrated. Is the law otherwise in this case, because in treason all are principals? Let this question be answered by reason and by authority. Why is it that in felonies, however atrocious, the trial Law the same in cases of the accessory can never precede the of treason. conviction of the principal? Not because the one is denominated the principal, and the other the accessory, for that would be ground on which a great law principle could never stand. Not because there was 149 149 United States v. Aaron Burr. in fact a difference in the degree of moral guilt, for in the case of murder committed by a hardy villain for a bribe, the person plotting the murder and giving the bribe is perhaps of the two the blacker criminal; and were it otherwise this would furnish no argument for precedence in trial. What, then, is the reason? It has been already given. The legal guilt of the accessory depends on the guilt of the principal, and the guilt of the principal can only be established in a prosecution against himself. IDoes not this reason apply in full force to a case of treason? The legal guilt of the person who planned the assem.blag~e on Blennerhassett's Island depends not simply on the criminality of the previous conspiracy, but dm on the criminality of that assemblage. If thoseIdm who perpetrated the fact be not traitors, he who advised the f act cannot be a traitor. His guilt, then, in contemplation of law, depends on theirs, and their guilt can only be established in a prosecution against themselves. Whether the adviser of this assemblage be punishable with death as a principal or as an accessory, his liability to punishment depends on the degree of guilt attached to an act which has been perpetrated by others, and which, if it be a criminal act, renders them guilty also. His guilt, therefore, depends on theirs, and their guilt cannot be legally established in a prosecution agrainst him. The whole reason of the law, then, relative to the principal and accessory, so far as respects the order of trial, seems to apply in f ull force to a case of treason committed by one body of men in conspiracy with others who are absent. Marshall's Constitutional Opinions. 150 If from reason we pass to authority, we find it laid Hale,Fosterandothers down by Hale, Foster, and East, in the sustain this principle. most explicit terms, that the conviction of some one who has committed the treason must precede the trial of him who has advised or procured it. This position is also maintained by Leach, in his notes on Hawkins, and is not, so far as the court has discovered, anywhere contradicted. These authorities have been read and commented on at such length that it cannot be necessary for the court to bring them again into view. It is the less necessary, because it is not understood that the law is controverted by the counsel for the United States. It is, however, contended that the prisoner has waived his right to demand the conviction of some one person who was present at the fact, by pleading to his indictment. Had this indictment even charged the prisoner according to the truth of the case, the court Burr did not waive any rights by pleading to would feel some difficulty in deciding the indictment. that he had by implication waived his right to demand a species of testimony essential to his conviction. The court is not prepared to say that the act which is to operate against his rights did not require that it should be performed with a full knowledge of its operation. It would seem consonant to the usual course of proceeding in other respects, in criminal cases, that the prisoner should be informed that he had a right to refuse to be tried until some person who committed the act should be convicted, and that he ought not to be considered as waiving the right to demand the record of conviction, unless, with the full knowledge of that right, he consented to be tried. The court, however, does not 151 151 United States v. Aaron Burr. decide what the law would be in such a case. It is unnecessary to decide it, because pleading to an indictment, in which a man is charged as having committed an act, cannot be construed to waive a right which he would have possessed had he been charged with having advised the act. No person indicted as a principal can be expected to say, I am not a principal, I am an accessory;I did not commit, I only advised, the act. The authority of the English cases on this subject depends in a great measure on the adoption of the common-law doctrine of accessorial. trea- The overt act of procuring the treasonsons. If that doctrine be excluded, this able assemblage ought to have been charged branch of it may not be directly ap- in the indictment. pticable to treasons committed within the United States. If the crime of advising or procuring a levying of war be within the constituttional definition of treason, then he who advises or procures it must be indicted on the very fact; and the question, whether the treasonableness of the act may be decided in the first instance in the trial of him who procured it, or must be decided in the trial of one who committed it, will depend upon the reason, as it respects the law of evidence, which produced the British decisions with regard to the trial of principal and accessory, rather than on the positive authority of those decisions. This question is not essential in the present case, because, if the crime be within the constitutional definition, it is an overt act of levying war, and, to produce a conviction, ought to have been charged in the indictment. The law of the case being, thus far settled, what ougyht to be the decision of the court on the Question of the admisOughtsibility of testimony present motion?Ouh the court to considered sit and hear testimony which cannot affect the prisoner, Marshall's Constitutional Opinions.15 152 or ought the court to arrest that testimony? On this question much has been said; much that may, perhaps, be ascribed to a misconception of the point really under consideration. The motion has been treated as a motion confessedly made to stop relevant testimony; and in the course of the argument it has been repeatedly stated by those who oppose the motion, that irrelevant testimony may and ought to be stopped. That this statement is perfectly correct is one of those fundamental principles in judicial proceedings which is acknowledged by all, and is founded in the absolute necessity of the thing. No person will contend that in a civil or criminal case either party is at liberty to introduce what testimony he pleases, legal or illegal, and to consume the whole term in details of facts unconnected with the particular case. Some tribunal, then, must decide on the admissibility of testimony. The parties cannot constitute this tribunal, for they do not agree. The jury cannot constitute it, for the question is, whether they shall hear the testimony or not. Who, then, but the court can constitute. it? It is of necessity the peculiar province of the court to judge of the admissibility of testimony. If the court admit improper or reject proper testimony, it is an error of judgment; but it is an error committed in the direct exercise of their judicial functions. The present indictment charges the prisoner with levying, war against the United States, and allegres an overt Idmact of levying war. That overt act must be proved, according, to the mandates of the Constitution and of the act of Congress, by two witnesses. It is not proved by a single witness. The presence of the accused has been stated to be an essential. component part of the overt act in this indictment, unless the i.commnon-law 153 United States v. Aaron Burr. principle respecting accessories should render it unnecessary; and there is not only no witness who has proved his actual or legal presence, but the fact of his absence is not controverted. The counsel for the prosecution offer to give in evidence subsequent transactions, at a different place, and in a different State, in order to prove - what? The overt act laid in the indictment? That the prisoner was one of those who assembled at Blennerhassett's Island? No, that is not alleged. It is well known that such testimony is not competent to establish such a fact. The Constitution and law require that the fact should be established by two witnesses, not by the establishment of other facts from which the jury might reason to this fact. The testimony, then, is not relevant. If it can be introduced, it is only in the character of corroborative or confirmatory testimony, after the overt act has been proved by two witnesses in such manner that the question of fact ought to be left with the jury. The conclusion, that in this state of things no testimony can be admissible, is so inevitable that the counsel for the United States could not resist it. I do not understand them to deny that, if the overt act be not proved by two witnesses so as to be submitted to the jury, all other testimony must be irrelevant, because no other testimony can prove the act. Now an assemblage on Blennerhassett's Island is proved by the requisite number of witnesses, and the court might submit it to the jury whether that assemblage amounted to a levying of war; but the presence of the accused at that assemblage being nowhere alleged, except in the indictment, the overt act is not proved by a single witness, and, of consequence, all other testimony must be irrelevant. The only difference between this motion as made, and Marshall's Constitutional Opinions. 154 the motion in the form which the counsel for the United States would admit to be regular, is Question as to the ad- this. It is now general for the rejecmissibility of testi-ge r ered further consid-tion of all testimony. It might be particular with respect to each witness as adduced. But can this be wished, or can it be deemed necessary? If enough is proved to show that the indictment cannot be supported, and that no testimony, unless it be of that description which the attorney for the United States declares himself not to possess, can be relevant, why should a question be taken on each witness? The opinion of this court on the order of testimony has frequently been adverted to as deciding this question against the motion. If a contradiction between the two opinions does exist the court cannot perceive it. It was Levying war is act coýiipounded of law said that levying war is an act cornand fact to be judged by jury with aid of pounded of law and fact, of which the court jury, aided by the court, must judge. To that declaration the court still adheres. It was said that, if the overt act was not proved by overt act not proved two witnesses, no testimony in its natby two witnesses, no ure corroborative or confirmatory was corroborative testiruony admissible. admissible, or could be relevant. From that declaration there is certainly no departure. It has been asked, in allusion to the present case, if a general commanding an army should detach troops for a distant service, would the men composing that detachment be traitors, and would the commander-in-chief escape punishment? Let the opinion which has been given answer this question. 155 United States v. Aaron Burr. Appearing at the head of an army would, according to this opinion, be an overt act of levying war; detaching a military corps from it for military purposes might also be an overt act of levying war. It is not pretended that he would not be punishable for these acts; it is only said that he may be tried and convicted on his own acts in the State where those acts were committed, not on the acts of others in the State where those others acted. Much has been said, in the course of the argument, on points on which the court feels no inclination Conclusion. to comment particularly, but which may, perhaps, not improperly receive some notice. That this court dares not usurp power is most true. That this court dares not shrink from its duty is not less true. No man is desirous of placing himself in a disagreeable situation. No man is desirous of becoming the peculiar subject of calumny. No man, might he let the bitter cup pass from him without self-reproach, would drain it to the bottom. But if he has no choice in the case; if there is no alternative presented to him but a dereliction of duty, or the opprobrium of those who are denominated the world, he merits the contempt as well as the indignation of his country, who can hesitate which to embrace. That gentlemen, in a case the most interesting, in the zeal with which they advocate particular opinions, and under the conviction in some measure produced by that zeal, should on each side press their arguments too far, should be impatient at any deliberation in the court, and should suspect or fear the operation of motives to which alone they can ascribe that deliberation, is, perhaps, a frailty incident to human nature; but if any conduct on Marshall's Constitutional Opinions.15 156 the part of the court could warrant a sentiment that they would deviate to the one side or the other from the line prescribed by duty and by law, that conduct would be viewed by the judges themselves with an eye of extreme severity, and would longy be recollected with deep and serious regret. The arguments on both sides have been intently and deliberately considered. Those which could not be noticed, since to notice every argument and authority would swell this opinion to a volume, have not been disregarded. The result of the whole is a conviction, as complete as the mind of the court is capable of receiving on a complex subject, that the motion must prevail. No testimony relative to the conduct or declarations of the prisoner elsewhere and subsequent to the transaction on Blennerhassett's Island can be admitted; because such testimony, being, in its nature merely corroborative, and incompetent to prove the overt act in itself, is irrelevant, until there be proof of the overt act by two witnesses. This opinion does not comprehend the proof by two witnesses that the mneeting, on Blennerhassett's Island was procured by the prisoner. On that point the court, for the present, withholds its opinion, for reasons which have been allready assigned; and as it is understood, from the statements made on the part of the prosecution, that no such testimony exists. If there be such, let it be offered, and the court will decide upon it. The jury have now heard the opinion of the court on the law of the case. They will apply that law to the facts, and will find a verdict of guilty or not guilty, as their own consciences may direct. 157 United States v. Aaron Burr. NOTE. On September 1, 1807, the jury returned the following verdict: "We of the jury say that Aaron Burr is not proved to be guilty under this indictment by any evidence submitted to us. We therefore find him not guilty." After some discussion by counsel "the court decided that the verdict should remain as found by the jury; and that an entry should be made on the record of 'not guilty."' " The interest in Burr, like that in the authorship of Junius, possesses all the vitality of an unsolved mystery. It is debated now just as it was debated a hundred years ago whether his real scheme was treasonable as comprising a separation of the West or Southwest from the Union, or merely a filibustering design against Mexico, or both, and it still is mysterious. Henry Adams in his History, after a careful examination, thinks it was both.' Mr. McCaleb3 in a work just published, upon a full review of all accessible and some new data, concludes that it was filibustering only. It is not probable that the question will ever be conclusively settled. Very likely the exact and final scope of the enterprise was not determined in Burr's own mind. Weighing the evidence, which is wholly circumstantial, it seems to us probable that the real object was, or at least at the time its execution was entered upon came to be, primarily an enterprise against Mexico looking to its subjugation or conquest, and, contingently, an enterprise against the United States,-that contingency depending upon success in Mexico, and the public sentiment in the West and the then condition of affairs in the United States. It can, however, confidently be affirmed that it was so destitute of the chances of a favorable issue as to be Quixotic. 1 Robertson, Shorthand Report of Trial, vol. 2, pp. 446, 447. Accounts of the Trial of Burr will be found in Flanders' Lives of the Chief Justices, II, 419 et seq. (Ed 1875); Van Santvoord, Lives of the Chief Justices, 364 et seq.; Kennedy, Life of Wirt, I, chs. XIII-XIV; Parton, Life of Burr, chs. XX-XXVI; Carson, Hist. Supreme Court, 215. Jefferson's letters in 1806 and 1807 contain many references to Burr's operations and to the trial before Chief Justice Marshall. 2 History of the United States. 3 The Aaron Burr Conspiracy, by Walter Flavins McCaleb, N. Y. 1903. Marshall's Constitutional Opinions. 158 In a note to Andrews' Edition of the Works of James Wilson, vol. II, page 422, the editor says: "The professional reader will not fail to observe. the change which has taken place in the nature and elements of treason. These changes have been the natural and logical consequences of discarding the feudal notion of allegiance, which is the personal tie between the subject and the sovereign, and the substitution of obedience to the law and obligation to maintain the government, wherein is seen an entire departure from the old notions of allegiance. Treason, therefore, consists of some overt act indicative of the intent to obstruct or destroy the government. Levying war, adhering to enemies or giving them comfort are acts of treason. "The courts had occasion in the early days of the Republic to examine into the new notions of treason. Among the most noted trials are Bollman and Swartwout, reported in 4 Cranch's U. S. Reports. In the argument of these cases our author's views as above set forth are cited. These cases grew out of the Burr treason cases, and Marshall's celebrated charge in Burr's case is reported in the appendix to 4 Cranch's U. S. Reports. "In these cases and the cases therein cited will be found the new ideas in relation to treason, levying of war, and the necessity of some overt act, that is the destruction of the English idea of constructive treason." See Story on the Constitution, III, ~~ 1790-1796; Tucker's Constitution of the United States, II, pp. 619-621. Circuit decisions referred to by Chief Justice M/arshall: In 1799, John Fries and others were charged with having committed a treasonable insurrection in the counties of Bucks and Northampton, Pennsylvania, in forcibly resisting the execution of two acts of Congress providing for the levying and collection of a direct tax within the United States. The indictment charged that the defendant, with more than a hundred other persons, armed and arrayed in warlike manner, with guns, etc., did traitorously assemble and combine to oppose and prevent by intimidation and violence the execution of the said laws, thereby, as it was alleged, levying war against the United States. The first trial of Fries was before Justice Iredell, of the Supreme Court. There was 159 United States v. Aaron Burr a mistrial, and a second trial was had in April, 1800, before Justice Chase, Associate Justice of the Supreme Court, and Richard Peters, District Judge of the United States. In 1795 an insurrection took place in the four western counties of Pennsylvania with a view of resisting and preventing by force the execution of certain statutes of Congress of 1791-1792, which imposed duties on distilled spirits. Phillip Vigol and John Mitchell were indicted for treason for levying war against the United States by resisting and preventing by force the execution of said Acts of Congress. They were tried before Justice Paterson, Associate Justice of the Supreme Court. The cases of Vigol and Mitchell and Justice Paterson's opinions and rulings are reported in 2 Dallas, 346 and 348. It was there held by Mr. Justice Paterson that an insurrection to prevent by force and intimidation the execution of an Act of Congress is treason and constitutes levying war against the United States. When the case of Fries came on for the second trial before Justice Chase and Judge Peters, the prisoner being in the box, Justice Chase stated, in substance, that he and Judge Peters agreed with Justices Paterson and Iredell as to the law of treason as laid down in the Vigol and Mitchell cases, but to prevent unnecessary delay and to save time, and to prevent a delay of justice in the great number of civil cases pending for trial at that time, the court had drawn up in writing their opinion of the law arising on the overt acts stated in the indictment against Fries, and had directed the clerk to deliver copies of the opinion, one to the District Attorney, one to the counsel for the prisoner, and one to the petit jury. When the copy was handed to William Lewis, an eminent lawyer and one of the prisoner's counsel, he was very indignant. Mr. Lewis testified on the Chase impeachment trial: "'The clerk handed me the paper which was designed for the prisoner's counsel. If I took hold of it, I am certain I did not read it. My impression is that I waved my hand and used these words: 'I will never suffer my hand to be corrupted with a prejudged opinion in any case, much less so in a capital one."' Mr. Lewis and Mr. Dallas consulted and agreed to de Marshall's Constitutional Opinions. 160 dine to appear for Fries any further in the case, and M4'r. Dallas testified that when Mr. Lewis refused to receive the opinion, he remembered to have heard Judge Peters say to Judge Chase: " I told you so; I knew they would take the stud." Mr. Lewis and Mr. Dallas consulted with their client in prison and Mr. Dallas testifies on this point: "In the evening of that day Mr. Lewis and myself visited Fries at the prison. We stated to him that we had two objects in view: the first, that of saving his life; and the second, to maintain our privileges as members of the bar. We told him that under the then existing circumstances we had no hopes of an acquittal, as there were no doubts as to the facts, and the court having made up their opinion as to the law, and the jury having heard the declaration of the court which would influence their verdict; and we told him if he would consent to our withdrawal from the defense and would refuse to accept other counsel, it would be a strong recommendation to the President for a pardon. He appeared at first extremely alarmed, but after some time he agreed to our proposition. We told him at the same time that if he insisted on it, we would proceed to defend him at every hazard." Afterwards Justice Chase and Judge Peters endeavored to have the counsel, -Mr. Lewis and Mr. Dallas, resume their connection with the case and defend the prisoner, but they declined to do so. On this point, Mr. Dallas testified: "Judge Chase said we might think to embarrass the court, but we should find ourselves mistaken. He then asked Fries if he wished other counsel assigned him. The prisoner replied he did not know what was best for him to do, but he would leave it entirely to the court. Judge Chase then observed that 'by the blessing of God they would do him as much justice as the counsel who had been assigned him."' Fries was thereupon tried without being defended by counsel. The charge of Judge Chase to the jury laid down the law of treason as it had been laid down in the Vigol and Mitchell cases above referred to, stating, among other things: " It is the opinion of the court that any insurrection arising from any body of people in the 161 United States v. Aaron Burr. United States attempting to obtain or effect by force and violence any object of a public nature or of general or national concern, is a levying of war against the United States within the contemplation of the Constitution;" leaving it to the jury to decide whether the purpose and intention of the defendants in doing what they did was treasonable. Largely for this alleged misconduct in handing down an opinion under the circumstances briefly detailed, four years afterwards (1804) Judge Chase was impeached by the House of Representatives of high crimes and misdemeanors. The opinions of Paterson, Iredell and Chase on the subject of treason in the above mentioned cases are those which are referred to and reviewed by Chief Justice Marshall in his opinion in the Burr case. See also cases reported in 2 Dallas; Trial of Samuel Chase, by Charles Evans, Appendix, p. 7 et seq. As to Fries case, see also " Forum," by David Paul Brown, 1, 353. In the Introduction to the John Marshall Memorial, I, xxxi et seq., Judge Dillon comments on the issuance of a subpoena duces tecum to President Jefferson in the Burr trials, and, among other things, says: " None of Marshall's rulings on these celebrated trials [of Aaron Burr] is questioned except the one awarding writs of subpoena duces tecum addressed to President Jefferson commanding him to appear at the court in Richmond and produce certain designated letters of General Wilkinson to the President, which Burr stated on oath might be material to his defense.... The legality or propriety of Marshall's orders granting subpoenas to the Executive head of the Government to appear in court as a witness or to appear and produce letters or documents has been the subject of controversy among lawyers from that time to the present, and different opinions thereon are expressed in the addresses here published.... " My own studies and reflections upon the subject have led me to the following conclusions: " 1. No ' such divinity doth hedge' the President that by virtue of his office he is, in criminal cases, totally exempt from judicial process requiring his attendance as a 11 Marshall's Constitutional Opinions. 162 witness. In the absence of controlling legislation, a court in such cases has the power, agreeably to the rules and usages of law, to issue to him a subpoena generally to appear as a witness, or a subpoena duces tecum to produce a material and relevant document in his possession. "Such was the express decision of Chief Justice Marshall in Burr's case; and accordingly he awarded, on Burr's application, a subpoena duces tecum directed to President Jefferson, then in Washington, requiring him to appear and produce at the trial in Richmond certain designated letters and documents in his possession or under his control, which the defendant stated under oath might be material to his defense. "The substantial ground of the criticism of Marshall's action in subpoenaing the President is the imputed absolute independence, personal and official, of the Executive of any control by a co-ordinate department, and the inability of the court to enforce against the President obedience to the writ by proceedings for contempt,- the argument being that the want of ability to enforce the writ demonstrates the want of power to issue it. These were Jefferson's views. He stated them distinctly in his letters to District Attorney Hay, and he directed that officer to communicate them to the court. In an unofficial letter to the same officer he clearly intimated that he would resist by force, as an invasion of the Executive province, any attempt on the part of the Judiciary to compel his personal attendance at Richmond, and thereby withdraw him from the exercise of his functions. "The decision of the Chief Justice as to the power of the court, and, on a proper showing by the defendant, the duty of the court to issue the writ, seems to me to be correct. " 2. Respecting the power and duty of the court upon the return of the writ, no certain rules, in the absence of legislation, can be laid down. " In the two opinions on this subject given by the Chief Justice on the Burr trials he res,rved all such questions until the return of the process. He said: 'In no case of this kind would the court be required to proceed against the President as against an ordinary individual ' ' cannot precisely lay down any general rule for such a case.' And he added: 'Perhaps the court ought to 163 United States v. Aaron Bun. consider the reasons which would induce the President to refuse to exhibit such a letter as conclusive on it, unless such letter could be shown to be absolutely necessary in the defense.... Had the President, when he transmitted the letter [of November 12, 1806, to the District Attorney, Hay], subjected it to certain restrictions, and stated that in his judgment the public interest required certain parts of it to be kept secret, and had accordingly made a reservation of them, all proper respect would have been paid to it; but he has made no such reservation. This must be decided by himself, not by another for him. ' "The trials for treason and misdemeanor broke down by reason of the failure of the Government's evidence to show that the defendant committed the offenses laid in the indictments at any place within the jurisdiction of the court, and the letters of General Wilkinson were not offered or used on the trials; and no further rulings were made by the co~urt on the subject of the letters or of the respective powers of the President and the court." The editor is permitted to give the following interesting letter from Mr. Justice Shiras, of the Supreme Court of the United States, bearing on the power of the judiciary to issue subpoenas duces tecuam to the chief executive officer of a State or the Nation: PITTSBURG, June 13, 1903. HON. JOHN F. DILLON: My Dear Judge:-The validity and effect of a subpcena from a court, addressed to the Governor of a State or to the President of the United States, was considered by the Supreme Court of Pennsylvania, in Appeal of Gov. Ilartranft, 4th Norris, 85 Penn. 433. A majority of that court held that, where such a writ had been sued out and served on the Governor of the State, it was a sufficient return if the Atty. Genl. of the State, appearing in the court, argued that such a functionary ought not, as a matter of law, to be called upon to make any return to such a writ -that it was enough to show that the writ was served upon one who occupied the position of Governor of the State. A minority, speaking through Agnew, Chief Justice, held that the Marshall's Constitutional Opinions. 164 proper course of the Governor, in such a case, was either to obey the behest of the writ by appearing in the court, or to make a return that affairs of State prevented him from leaving the seat of government, or that the subject of the inquiry in the court was of such a character as to affect the welfare of the State in such a way that, in his judgment, he ought not to be subjected to examination in a court of law. Such a return as the latter would exonerate the Governor from an attachment for disobeying the writ, but that a mere allegation that the person named in the writ was the Governor would not so exonerate him. It would seem to me that the view of C. J. Agnew (who was, as you doubtless know, a jurist of high repute) was the sound one, and was the view of C. J. Marshall in the Burr case. However, as that was my contention as counsel in the Pennsylvania case, it may be that my judgment is biased by that circumstance. Very truly yours, GEORGE SHIRAS, JR. REFERENCES TO UNITED STATES v. BURR, IN MARSHALL MEMORIAL. VOL. I Introduction by John F. Dillon, xxix, xxx, xxxi et seq., xliii et seq.; Justice Horace Gray, p. 71; Hon. Charles Freeman Libby, pp. 124, 125, 126, 127; Prof. Jeremiah Smith, p. 168; Prof. James Bradley Thayer, p. 233; Judge Le Baron Bradford Colt, pp. 306, 307; Charles E. Perkins, Esq., pp. 327 et seq.; Justice Nathaniel Shipman, p. 335; Hon. John F. Dillon, pp. 350, 367; Judge Francis M. Finch, p. 402; David J. Pancoast, Esq., p. 434; Justice James T. Mitchell, pp. 493, 494; Hon. John Bassett Moore, p. 518. VoL. IL Hon. William Pinkney Whyte, p. 16; Charles J. Bonaparte, Esq., pp. 27, 29, 33, 34, 35, 36; Judge Charles H. Simonton, pp. 106, 107; Judge Horace H. Lurton, p 209; Hon. John F. Follett, p. 271; Hon. Henry Cabot Lodge, pp. 327, 328; Hon. William Lindsay, p. 350; Isaac N. Phillips, Esq., pp. 383, note, 394; John N. Baldwin, Esq., pp. 438, 439; Hon. Henry Hitchcock, p. 516; Sanford B. Ladd, Esq., p. 560. 165 United States v. Aaron Burr. VOLI'.II. Judge John H. Rogers, p. 805; Hon. James M. Woolworth, p. 85 et seq.; Justice Charles N. Potter, p. 105; Julius C. Gunter, Esq., pp. 113, 114; Hon. U. M. Rose (Colorado), p. 132 et seq.; Judge J. A. Cooper, p. 191; James E. Babb, Esq., p. 200; Hon. George H. Williams, p. 222; Horace G. Platt, Esq., pp. 235, 236; Judge Cornelius H. Hanford, pp. 252, 253; Charles E. Shepard, Esq., p. 271; Oration of W. H. Rawle, pp. 424 et seq. FEDERAL JURISDICTION OVER CORPORATIONS. The next case --The Bank v. Deveaux --is important and interesting as being the first case that came before the Supreme Court of the United States involving the question whether under the Judiciary Article of the Constitution (art. III, sec. 2) the Federal courts could be invested by Congress in any case with jurisdiction over corporations, and if so whether the Judiciary Act (see. 11) did confer such jurisdiction in the case before the court. Neither the Constitution nor the Judiciary Act mentions ''"corporations," " citizens " only are mentioned, and the jurisdiction of the Federal court on this ground was limited by the Judiciary Act to a case where "the suit is between a citizen of the State where the suit is brought and a citizen of another State" (see. 11). The case of The Bank v. Deveaux presented the question whether a private corporation - the Bank - could bring an original suit in the Federal court. The Supreme Court held that a corporationper se was not a "citizen," but also held that it represented citizens, and that in fact and in law the suit was between persons suing in their corporate character and the individual defendant. On this ground the jurisdiction of the Federal courts over corporations could only be maintained where all the membars were citizens of one State or of some State other than that of the defendant. This narrow view remained unshaken for years, and it had the necessary effect of depriving the Federal courts in almost every instance of any jurisdiction over corporations, by whose 167 Bank of United States v. Deveaux. agency the great business enterprises of the country had at length come to be carried on. The view taken by Chief Justice Marshall in the opinion in The Bank v. Deveaux was subsequently modified to the effect that "1a suit by or against a corporation in its corporate name may be presumed to be a suit by or against citizens of the State which created the corporate body, and no averment or denial to the contrary is admissible for the purpose of withdrawing the suit from the jurisdiction of a court of the United States."' The result thus finally reached was doubtless essential to carry out the full purpose of the Constitution in providing for a Federal judiciary, but the serious difficulties arising out of the word "citizen" in the Constitution in reaching that result are among the most impressive illustrations of the important part which fiction plays in the development of every system of jurisprudence.2 It was not easy to hold directly that "a corporation was a citizen," but it is in effect so held by the fiction which the court has adopted that all of the shareholders or members of a corporation are conclusively presumed to be citizens of the State which created the corporation, a presumption which in most instances is directly contrary to the fact. The Supreme Court has since held that the word "1 person" in the Fourteenth Amendment of the Constitution included "corporations." On the like principles the court might have held that a corporation was a juristic person or citizen of the State that created it, and as such was a citizen within the meaning and purpose of the I The Ohio & Mississippi Railroad Company v. Wheeler, 1 Black, U. S. Supreme Court Reports, 286. 'mCurtis, Jurisdiction ot the United States Courts, oh. V. Marshall's Constitutional Opinions.16 168 Constitution and Judiciary Act; but that result was in the course of judicial evolution reached in a more easy and indirect way, by the adoption of the fiction above stated. The opinion of the Chief Justice, aside from its importance, has the added interest of being, the first of the cases in the Supreme Court which dealt with the difficult subject of Federal judicial power over corporations, and as being one of the very few instances in which the views or opinions of Chief Justice Marshall were modified if not overruled, which in this instance was done with his concurrence. The Bank of the United States v. Deveaux and Others. February Term, 1809. [5 Cranch's Reports, 61-92.] The propositions of law decided in this case are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: Whether a corporation aggregate can be sued in the courts of the United States depends upon the citizenship of its members. The charter of the Bank of the United States does not enable that bank to sue in the courts of the United States. The facts in the case were as follows: In 1805" the State of Georgia passed a law taxing a branch bank of the United States at Savannah. The Bank of the United States was established under an Act 169 Bank of United States v. Deveaux. of Congress.1 The tax was not paid, and the State officers entered the bank and seized $2,000 in money. The bank sued Deveaux, the State officer who authorized the entry and also the one who made the entry, in trespass, before the United States Circuit Court for the District of Georgia The declaration contained in averment was that the plaintiffs " are citizens of the State of Pennsylvania, and that the said Deveaux and Robinson are citizens of the State of Georgia." The defendants pleaded to the jurisdiction of the court that the body corporate which brought the action was not competent to sue in a Federal court. To this plea to the jurisdiction the plaintiffs demurred, and the court gave judgment in favor of the defendants, sustaining the plea. The case came in due course of law to the Supreme Court of the United States,2 11 Statutes at Large, 191, chapter 10, approved February 25, 1791. That Congress has power to incorporate a bank and establish branches in the States, see McCulloch v. Maryland, 4 Wheat. 316, and the opinion of Chief Justice Marshall therein contained in this volume. As to the power of the States to tax banks established by Congress, see same case and also post, opinion of Marshall, Chief Justice, in Osborn v. Bank of the United States, 9 Wheat. 738. Inasmuch as in this case the plaintiff bank was chartered by the Act of Congress, no reason is perceived why, under the later decisions of the Supreme Court, the plaintiff being a Federal corpora2 The court was constituted as follows: JOHN MARSHALL, Chief Justiee. SAMUEL CHASE, BUSHROD WASHINGTON, A WILLIAM JOHNSON, Associate Justices BROCKHOLST LIVINGSTON, J Justice Livingston, having an interest in the question, gave no opinion. Horace Binney, R. G. Harper and Mr. Ingersoll appeared for the plaintiffs. P. B. Key and Walter Jones appeared for the defendants. Marshall's Constitutional Opinions.17 170 which decided the two questions stated in the opinion of the court, which was delivered by Chief Justice Marshall. MARSHALL, Chief Justice. Two points have been made in this cause. 1. That a corporation, composed of citizens of one State, Opinion. may sue a citizen of another State in the Federal courts. 2. That a right to sue in those courts is conferred on this bank by the law which incorporates it. The last point will be first considered. The judicial power of the United States, as defined in the Constitution, is dependent, 1st. On the nature of the case; and 2d. On the character of the parties. By the judicial act, the jurisdiction of the Circuit Courts is extended to cases where the Jurisdiction of Circuit Court under the Judi- constitutional right to plead and be imciary Act. Z pleaded in the courts of the Union depends on the character of the parties; but where that right depends on the nature of the case, the Circuit Courts derive -no jurisdiction from that act, except in the single case of a controversy between citizens of the same State, claiming lands under grants from different States. Unless, then, jurisdiction over this cause has been given Unless jurisdiction is to the Circuit Court by some other given by some other than he judicial act, than the judicial act, the Bank of the the Circuit Court has no jurisdiction United States had not a right to sue in that court, upon the principle that the case arises under a law of the United States. tion, the Federal courts did not have jurisdiction on the ground of subject-matter, irrespective of the citizenship of the parties. See Pacific Railroad Removal Cases, 115 U. S. Supreme Court Reports. 1, and cases in the Supreme Court there cited. Post, p. 512. 171 Bank of United States v. Deveaux. The plaintiffs contend that the incorporating act confers this jurisdiction. That act creates the corporation, gives it a capacity to make contracts and to acquire property, and enables it "to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in courts of record, or any other place whatsoever." This power, if not incident to a corporation, is conferred by every incorporating act, and is not understood to enlarge the jurisdiction of any particular court, but to give a capacity to the corporation to appear, as a corporation, in any court which would by law have cognizance of the cause, if brought by individuals. If jurisdiction is given by this clause to the Federal courts, it is equally given to all courts having original jurisdiction, and for all sums, however small they may be. But the ninth article of the seventh section of the act furnishes a conclusive argument Ninth articie of seventh section furnishes against the construction for which the a conclusive argument against plaintiffs' conplaintiffs contend. That section sub- struction. jects the president and directors, in their individual capacity, to the suit of any person aggrieved by their putting into circulation more notes than is permitted by law, and expressly authorizes the bringing of that action in the Federal or State courts. This evinces the opinion of Congress that the right to sue does not imply a right to sue in the courts of the Union, unless it be expressed. This idea is strengthened also by the law respecting patent rights. That law expressly recognizes the right of the patentee to sue in the Circuit Courts of the United States. The court, then, is of opinion that no right is conferred on the bank, by the act of incorporation, to sue in the Federal courts. Marshall's Constitutional Opinions.17 172 2. The other point is one of much more difficulty. The jurisdiction of this court being limited, so far as respects the character of the parties in this particular case, "1to controversies between citizens of different States," both parties must be citizens to come within the description. That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and consequently cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name. If the corporation be considered as a mere faculty, and not as a company of individuals who in tra~nsactingr their joint concerns may use a legal name, they must be excluded from the courts of the Union. The duties of this court, to exercise jurisdiction where it is conferred, and not to usurp it where it is not conferred, are of equal obligation. The Constitution, therefore, and the law are to be expounded, without a leaning, the one way or the other, according to those general principles which usually govern in the construction of fundamental or other laws. A Constitution, from its nature, deals in generals, not Contittin dalsinin details. Its framers cannot perceive generals, not in de- Minute distinctions which arise in the tails.progress of the nation, and therefore confine it to the establishment of broad and general principles. The judicial department was introduced into the American Constitution under impressions and with views which are too apparent not to be perceived by all. However true the fact may be, that the tribunals of the States will administer justice, as impartially as those of 173 Bank of United States v. Devesaux. the nation, to parties of every description, it is not less true that the Constitution itself either entertains apprehensions on this subject, or views with such indulgence the possible fears and apprehensions of suitors that it has established national tribunals for the decision of controversies between aliens and a citizen, or between citizens of different States. Aliens, or citizens of different States, are not less susceptible of these apprehensions, nor can they be supposed to be less the objects of constitutional provision, because they are allowed to sue by a corporate name. That name, indeed, cannot be an alien or a citizen; but the persons whom it represents may be the one or the other; and the controversy is, in fact and in law, between those persons suing in their corporate character, by their corporate name, for a corporate right, and the individual against whom the suit may be instituted. Substantially and essentially, the parties in such a case, where the members of the corporation are aliens, or citizens of a different State from the opposite party, come within the spirit and terms of the jurisdiction conferred by the Constitution on the national tribunals. Such has been the universal understanding on the subject. IRepeatedly has this court decided causes between a corporation and an individual with- This court has repeatout feeling a doubt respecting its juris- edly decided causes between a corporation diction. Those decisions are not cited and an individual as authority; for they were made without considering this particular point; but they have much weight, as they show that this point neither occurred to the bar or the bench; and that the common understanding of intelligent men is in favor of the right of incorporated aliens, or citizens of a different State from the defendant, to sue in the national courts. It is by a course of acute, Marshall's Constitutional Opinions. 174 metaphysical, and abstruse reasoning, which has been most ably employed on this occasion, that this opinion is shaken. As our ideas of a corporation, its privileges, and its disabilities, are derived entirely from the English books, American ideas con- we resort to them for aid in ascertaincerning corporations ing its character. It is defined as a derived from English books. mere creature of the law, invisible, intangible, and incorporeal. Yet when we examine the subject further, we find that corporations have been included within terms of description appropriated to real persons. The statute of Henry VIII. concerning bridges and highways enacts that bridges and highways shall be made and repaired by the "1inhabitants of the city, shire, or riding," and that the justices shall have power to tax every "inhabitant of such city," etc., and that the collectors may "distrain every such inhabitant as shall be taxed and refuse payment thereof, in his lands, goods, and chattels." Under this statute those have been construed inhabitants who hold lands within the city where the bridge to be repaired lies, although they reside elsewhere. Lord Coke says, "Every corporation and body politic residing in any county, riding, city, or town corporate, or having lands or tenements in any shire, Lord Coke cited. quce propriis manibus et sum)tibuspossident et habent, are said to be inhabitants there, within the purview of this statute." The tax is not imposed on the person, whether he be a member of the corporation or not, who may happen to reside on the lands; but is imposed on the corporation itself; and consequently this ideal existence is considered 175 175 Bank of United States v. Deveawcr as an inhabitant when the general spirit and purpose. ot the law requires it. In the case of The King v. Gardner, reported by Cowper, a corporation was decided by the court of the King's Bench to come within the description of "1occupiers or inhabitants." In that case the poor-rates, to which the lands of the corporation were declared to be liable, were not assessed to the actual occupant, for there was none, but to the corporation. And the principle established by the case appears to be, that the poor-rates, on vacant ground belonging to a corporation, may be assessed to the corporation, as being inhabitants or occupiers of that ground. In this case Lord Mansfield notices and overrules an inconsiderate dictum of Justice Yates, that a corporation could not be an inhabitant or occupier. These opinions are not precisely in point; but they serve to show that, for the general pur- Incorporeal creature poses and objects of a law, this invis- may liave corporeal ible, incorporeal creature of the law quaiis may be considered as havingý corporeal qualities. It is true that, as far as these cases go, they serve to show that the corporation itself, in its incorporeal character, may be considered as an inhabitant or an occupier; and the argument from them would be more strong in. favor of considering the corporation itself as endowed for this special purpose with the character of a citizen, than to consider the character of the individuals who compose it as a subject which the court can inspect, when they use the name of the corporation for the purpose of asserting their corporate rights. Still, the cases show that this technical definition of a corporation does not uniformly circumscribe its capacities, but that courts for Marshall's Consstituional Opinions. 176 legitimate purposes will contemplate it more substantially. There is a case, however, reported in 12 Modern Reports, which is thought precisely in point. The corporation of London brought a suit against Wood, by their Mayor and Common- corporate name, in the mayor's court. alty v Wood. The suit was brought by the mayor and commonalty, and was tried before the mayor and aldermen. The judgment rendered in this cause was brought before the court of King's Bench, and reversed, because the court was deprived of its jurisdiction by the character of the individuals who were members of the corporation. In that case the objection that a corporation was an invisible, intangible thing, a mere incorporeal, legal entity in which the characters of the individuals who composed it were completely merged, was urged and was considered. Court maylookbeyond The judges unanimously declared that and nortice te mcha they could look beyond the corporate acter oftheindividuals. name, and notice the character of the individuals. In the opinions which were delivered seriatim, several cases are put which serve to illustrate the principle and fortify the decision. The case of The Mayor and Commonalty v. Wood is the stronger because it is on the point Above case on all-fours with one under consid- of jurisdiction. It appears to the court eration to be a full authority for the case now under consideration. It seems not possible to distinguish them from each other. If, then, the Congress of the United States had in terms enacted that incorporated aliens might sue a citizen, or that the incorporated citizens of one State might sue a citizen of another State, in the Federal courts, by 177 Bank of United States v. Deveaux. their corporate name, this court would not have felt itself justified in declaring that such a law transcended the Constitution. The controversy is substantially between aliens, suing by a corporate name, and a citizen, or between citizens of one State, suing by a corporate name, and those of another State. When these are said to be substantially the parties to the controversy, the court does not mean to liken it to the case of a trustee. A trustee is a real person, capable of being a citizen or an alien, who has the whole legal estate in himself. At law he is the real proprietor, and he represents himself, and sues in his own right. But in this case the corporate name represents persons who are members of the corporation. If the Constitution would authorize Congress to give the courts of the Union jurisdiction in this case, in consequence of the character of the members of the corporation, then the judicial act ought to be construed to give it. For the term " citizen " ought to be understood as it is used in the Constitution, and as it is used in other laws; that is, to describe the real persons who come into court, in this case, under their corporate name. That corporations composed of citizens are considered by the legislature as citizens, under cer- corportions compose tain circumstances, is to be strongly in- of tensi are onsidered as citizens by the ferred from the registering act. It Legislature. never could be intended that an American registered vessel, abandoned to an insurance company composed of citizens, should lose her character as an American vessel; and yet this would be the consequence of declaring that the members of the corporation were, to every intent and purpose, out of view, and merged in the corporation. The court feels itself authorized, by the case in 12 Mod12 Marshall's Constitutional Opinions.17 178,ern Reports, on a question of jurisdiction, to look to the character of the individuals who compose the corporation; and they think that the precedents of this court, though they were not decisions on argument, ought not to be absolutely disregrarded.' If a corporation may sue in the courts of the Union, the court is of opinion that the averment in this case is sufficient. Being authorized to sue in their corporate name, they could make the averment, and it must apply to the plaintiffs as individuals, because it could not be true as applied to the corporation. Judgment reversed, plea in abatement overruled and cause remanded. NOTE. "A much-controverted question here arises: Is a corporation created by a State a citizen within the meaning of these jurisdictional clauses? It is very obvious that a corporation is not a citizen in the true primal sense of that term. It is a metaphysical entity, a creature of the ]aw, distinct from the personality of all its corporators. A citizen, in the true sense of the term, is a human being, with personal rights and capable of personal privileges and immunities; but it was held in an early case [Bank v. Deveauxi that the reason or the jurisdictional clause of the Constitution applied to the cases of the corporations of different States. The reason that jurisdiction was given between citizens of different States to the United States courts was the apprehension that the State courts, in such controversies, might not be as impartial as a court of the United States. The State court depends for its authority upon the State creating it; its environments consist of the nature, feeling and sympathies of "'"The rule has now taken the form of a legral fiction. For while a suit by or against a corporation is considered to be brought by or against its members, they are conclusively presumed, for purposes of jurisdiction, to be citizens of the State in which the body was incorporated." Kent Corn. (12th Ed.), 1, *~347. See ante, p. 167. 179 Bank of United States v. Deveaux. the people of the State. A United States court is created by the Constitution of the Union, and in its independence of State authority and separation from State influence would be a better tribunal for the trial of questions in which the rights of the stranger were involved. This reason for the jurisdiction where the parties were citizens is stronger where one of the parties is a corporation; if the stranger citizen might be prejudiced in a State court, a fortiori might a stranger corporation be. Then again it was easy to see that the corporation, which was a being of the law and not a personality, yet represented persons who would likely be citizens of the State which created it. While, therefore, in form it was a corporation, a legal entity, and not a person representing persons who were citizens of the States which created it, the reason of the rule led to the early decisions that a corporation of a State was to be regarded, for jurisdictional purposes, as if it were the body of the corporators who were citizens of the same State. This view was strongly stated by Chief Justice Marshall in the case of Bank of the United States v. Deveaux." Tucker, Const. of U. S., II, 793, 794. The decision in the case of Bank of the United States v. Deveaux has been overruled or modified, and it is now the well established rule that for Federal jurisdictional purposes a corporation is conclusively presumed to be a citizen of the State which created it, and this is true also whether all the members of the corporation are citizens of the State or not, and the presumption that all the members are citizens of the incorporating State the court will not permit to be rebutted.' In a letter from Mr. Justice Story to Chancellor Kent of August 31, 1844, it appears that Chief Justice Marshall had become satisfied that the early decisions were wrong.2 Justice Horace Gray in Marshall Memorial, I, 74. He (Marshall) expounded the law of the Constitution without leaning one way or the other to accord to those general principles which usually govern the construction of fundamental laws. Thorpe, Const. Hist of U. S., II, 512. 1 See Kent Com. (12th Ed.), I, *347 and note b; Curtis on Jurisdiotion of United States Courts, chapter V. Post, p. 512. 2 Referring to this case and the case of The Bank of the United States v. Dandridge, 12 Wheaton, 64. SANCTITY AND FORCE OF JUDGMENTS OF THE FEDERAL COURTS - THEIR IN VIOLABILITY BY THE STATES. One of the earliest and most impressive of Marshall's decisions establishing the principle of nationality is the case of the United States against Judge Peters, given in the year 1809. It is here held that the judgments of the courts of the United States in cases in which they have jurisdiction, or the rights which may be acquired under said judgments, cannot be interfered with or injuriously affected by action on the part of the States through State Legislatures or State tribunals, and that it belongs to the Federal tribunals and not to the States to determine whether the courts of the United States have jurisdiction of a cause under the Constitution and laws of the United States. The United States v. Judge Peters. February Term, 1809. [5 Cranch's Reports, Appendix, 115-141.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The Court of Appeals established by the Continental Congress had power to reverse the sentence of a State Court of Admiralty* 181 United States v. Judge Peters. An act of a State Legislature cannot determine whether a court of the United States has jurisdiction. It being suggested that a State was the owner of a fund proceeded against in the District Court, in admiralty, the claim of the State was examined, and this court having found that the State was not a necessary party, a peremptory mandamus to the District Judge, to proceed to adjudicate between the individual parties, was awarded. The fact that a State has an interest in the subjectmatter of a suit between individuals, which it may choose to assert, does not oust the courts of the United States of jurisdiction. If such an interest is suggested as would make the State a necessary party, the suggestioni must be examined, and its correctness determined by the court. The United States District Court for the district of Pennsylvania gave, in a certain admiralty case, sentence in favor of Gideon Olmstead and others against Elizabeth Serjeant and Esther Waters. A copy of this sentence was served on said Serjeant and Waters, which they refused to obey. Judge Peters of the District Court was then applied to for.a process which should enforce obedience, but this he would not grant. At the February term of 1808 the Supreme Court was applied to for a rule to the said judge, requiring him to show cause why a mandamus should not issue commanding him to grant the desired process. He made a return stating that the Legislature of Pennsylvania had passed an act to protect Elizabeth Marshall's Constitutional Opinions. 182 Serjeant and Esther Waters against the process of any United States court issued under the suits in question, that he was unwilling to embroil the United States with Pennsylvania, and refused to grant the process in order to bring the case before the Supreme Court. Serjeant and Waters were the executrixes of Rittenhouse, referred to below. On the 20th of February, 1809, Chief Justice Marshall delivered the opinion of the court.' MARSHALL, Chief Justice. With great attention, and with serious concern, the court has considered Opinion. the return made by the judge for the district of Pennsylvania to the mandamus directing him to execute the sentence pronounced by him in the case of Gideon Olmstead and others v. Rittenhouse's Executrixes, or to show cause for not so doing. The cause shown is an act of the Legislature of Pennsylvania, passed subsequent to the rendition of his sentence. This act authorizes and requires the Governor to demand, for the use of the State of Pennsylvania, the money which had been decreed to 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice. WILLIAM CUSHING, SAMUEL CHASE, BUSHROD WASHINGTON, Associate Justice& WILLIAM JOHNSON, BROCKHOLST LIVINGSTON, J Justice Brockholst Livingston was appointed during the recess, in place of William Paterson, deceased. Justice William Gushing was absent on account of illness. At this term C. A. Rodney, Attorney-General, William Lewis and F. S. Key, of counsel for Olmstead and others, submitted the return of the mandamus to the consideration of the court without argument. John Sergeant for defendants. 183 183 United States v. Judge Peters. Gideon Olmstead and others, and which was in the hands of the executrixes of David IRittenhouse; and, in default of payment to direct the Attorney-General to institute a suit for the recovery thereof. This act further authorizes and requires the Governor to use any further means he may think necessary for the protection of what it denominates "1the just rights of the State," and also to protect the persons and properties of the said executrixes of David IRittenhouse, deceased,against any process whatever issued out of any Federal court in consequence of their obedience to the requisition of the said act. If the Legislatures of the several States may at will annul the judgments of the courts Deplorable results if of the United States, and destroy the s"atLegislatures rights acquired under those judgments, of United States courts the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals. So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other State, must feel a deep interest in resisting principles, so destructive of the Union, and in averting consequences so fatal to themselves. The act in question does not, in terms, assert the universal right of the State to interpose in every case whatever; but assigns, as a motive for its interposition in this particular case, that the sentence the execution of which it prohibits was rendered in a cause over which the Federal courts have no jurisdiction. If the ultimate right to determine the jurisdiction of the courts of the Union is placed by the Constitution in the several State Legislatures, then this act concludes Marshall's Constitutional Opinions. 184 the subject; but if that power necessarily resides in the supreme judicial tribunal of the Nation, then the jurisdiction of the District Court of Pennsylvania over the case in which that jurisdiction was exercised ought to be most deliberately examined; and the act of Pennsylvania, with whatever respect it may be considered, cannot be permitted to prejudice the question. In the early part of the war between the United States Howth cse roe. and Great Britain, Gideon Olmstead and others, citizens of Connecticut, who say they had been carried to Jamaica as prisoners, were employed as part of the crew of the sloop Active, bound from Jamaica to New York, and laden with a cargo for the use of the British army in that place. On the voyage they seized the vessel, confined the captain, and sailed for Egg Harbor. In sight of that place the Active was captured by the Convention, an armed ship belonging to the State of Pennsylvania, brought into port, libeled, and condemned as prize to the captors. From this sentence Gideon Olmstead and others, who claimed the vessel and cargo, appealed to the Court of Appeals established b)y Congoress, by which tribunal the sentence of condemnation was reversed, the Active and her cargo condemned as prize to the claimants, and process was directed to issue out of the Court of Admiralty, commanding the marshal of that court to sell the said vessel and cargo and pay the net proceeds to the claimants. The mnandate of the appellate court was produced in the inferior court, the judge of which admitted the greneral jurisdiction of the court established by Congress, as de.an appellate court, but denied its power to control the verdict of a jury which had been rendered in favor of the captors, the officers andl crew of 185 United States v. Judge Peters. the Convention; and therefore refused obedience to the mandate; but directed the marshal to make the sale, and, after deducting charges, to bring the residue of the money into court, subject to its future order. The claimants then applied to the judges of appeals for an injunction to prohibit the marshal from paying the money arising from the sales into the Court of Admiralty; which was awarded, and served upon him; in contempt of which, on the 4th of January, 1778, he paid the money to the judge, who acknowledged the receipt thereof at the foot of the marshal's return. On the first of May, 1799, George Ross, the judge of the Court of Admiralty, delivered to Historyhecase. David Rittenhouse, who was then treasurer of the State of Pennsylvania, the sum of ~11,496 9s. 9d. in loan-office certificates, which was the proportion of the prize-money to which that State would have been entitled had the sentence of the Court of Admiralty remained in force. On the same day David Rittenhouse executed a bond of indemnity to George Ross, in which, after reciting that the money was paid to him for the use of the State of Pennsylvania, he binds himself to repay the same, should the said George Ross be thereafter compelled, by due course of law, to pay that sum according to the decree of the Court of Appeals. These loan-office certificates were in the name of Matthew Clarkson, who was marshal of the Court of Admiralty, and were dated the 6th of November, 1778. Indents were issued on them to David Rittenhouse, and the whole principal and interest were afterwards funded by him, in his own name, under the act of Congress making provision for the debt of the United States. Among the papers of David Rittenhouse was a memo Marshall's Constitutional Opinions.18 186 irandum, made by himself at the foot of a list of the certificates mentioned above, in these words: "Note. Ie.The above certificates will be the property of the State of Pennsylvania, when the State releases me from the bond I gave, in 1778, to indemnify George Ross, Esq., judge of the admiralty, for paying the fifty original certificates into the treasury, as the State's share of the prize."~ The State did not release David Rittenhouse from the bond mentioned in this memorandum. These certificates remained in the private possession of David IRittenhouse, who drew the interest on them during his life, and after his death they remained in possession of his representatives, against whom the libel in this case was filed, for the purpose of carrying into execution the decree of the Court of Appeals. While this suit was depending, the State of Pennsylvania forbore to assert its title, and in January, 1803, the court decreed in favor of the libelants; soon after which the Legislature passed the act which has been stated. It is contended that the Federal courts were deprived of Contention is that Fed- jurisdiction in this cause by that amendve fjrsito ment of the Constitution which. exempts EyrxI Amendment. States from being sued in those courts by individuals. This amendment declares, "that the judicial power of the United States shall not be construed to extend to any suit, in law or equity, comnmenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." The right of a State to assert, as plaintiff, any interest The fact that State has it may have in a subject which forms an interest in subject-, matter of suit between th e matter ofcotvesbtwniindividuals does notdidusi cotveybtw nioust the courts of the iduln one of the courts of the United States of jurisdiction. United States, is not affected by this 187 187 United States v. Judge Peters. amendment; nor can it be so construed as to oust the court of its jurisdiction, should such claim be suggested. The amendment simply provides that no suit shall be commenced or prosecuted against a State. The State cannot be made defendant to a suit brought by an individual; but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one State against citizens of a different State, where a State is not necessarily a defendant. In this case the suit was not instituted against the State or its treasurer, but against the executrixes of David IRittenhouse, for the proceeds of a vessel condemned in the Court of Admiralty which were admitted to be in their possession, If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion; but it certainly can never be alleged that a mere suggestion of title in a State to property, in possession of an individual, must arrest the proceedings of the court, and prevent their looking into the suggestion, and examining the validity of the title. If the suggestion in this case be examined, it is deemed perfectly clear that no title whatever to the certificates in question was vested in the State of Pennsylvania. By the highest judicial authority of the Nation it has been long since decided that the Court Court of Appeals esof Appeals erected by Congress had tablished by the Continental Congress had pwer to reverse a senfull authority to revise and correct the tec faStt or sentences of the Courts of Admiralty of Admiralty. of the several States in prize causes. That question, therefore, is at rest. Consequently, the decision of the Court of Appeals in this case annulled the sentence of Marshall's Constitutional Opinions.18 188 the Court of Admiralty, and extinguished the interest of the State of Pennsylvania in the Active and her cargo which was acquired by that sentence. The full right to that property was immediately vested in the claimants, who might rightfully pursue it, into whosesoever hands it might come. These certificates, in the hands, first, of Matthew Clarkson, the marshal, and afterwards of Georgre Ross, the judge of the Court of Admiralty, were the absolute property of the claimants. Nor did they change their character on coming into the possession of David Rittenhouse. Althoug~h Mr. iRittenhouse was treasurer of the State of Pennsylvania, and the bond of indemnity which he executed states the money to have been paid to him for the use of the State of Pennsylvania, it is apparent that he held them in his own right, until he should be completely indemnified by the State. The evidence to this point is conclusive. The original certificates do not appear to have been deposited in the State Treasury, to have been designated in any manner as the property of the State, or to have been delivered over to the successor of David Rittenhouse. They remained in his possession. The indents, issued upon them for interest, were drawn by David Rittenhouse, and preserved with the original certificates. When funded as part of the debt of the United States, they were funded by David Rittenhouse, and the interest was drawn by him. The note made by himself at the foot of the list which he preserved, as explanatory of the whole transaction, demonstrates that he held the certificates as security against the bond he had executed to George Ross; and that bond was obligatory, not on the State of Pennsylvania, but on David Rittenhouse, in his private capacity. 189 189 United States v. Judge Peters. These circumstances demonstrate, beyond the possibility of doubt, that the property which represented the Active and her cargo was in possession, not of the State of Pennsylvania, but of David iRittenhouse, as an individual; after whose death it passed, like other property, to his representatives. Since, then, the State of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the District Court was pronounced, and since the suit was neither commenced nor prosecuted against that State, there remains no pretext for the allegation that the case is within that amendment of the Constitution which has been cited; and consequently, the State of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause. It will be readily conceived that the order, which this court is, enjoined to make by the high obligations of duty and of law, is not made without extreme regret at the necessity which has induced the application. But it is a solemn duty, and therefore must be performed. A peremptory mandamus must be awarded. NOTE. "The State Legisla 'tures cannot annul the judgments, nor determine the extent of the jurisdiction, of the courts of the Union. This was attempted by the Legislature of Pennsylvania, and declared to be inoperative and void by the Supreme Court of the United States, in the case of the United States v. Peters." Kent, Coin. (12th Ed.), I, *409. The material facts of the case down to the decision of the Supreme Court appear in Chief Justice Marshall's opinion. After that decision the further history of the case is thus summarized by Judge Hlopkinson: "1A decree was given by the District Court (Judge Richard Marshall's Constitutional Opinions.19 190 Peters 1) according to the prayer of the libel. This was in January, 1803. ý Thus far the State of Pennsylvania had made no movement to assert her claim; but it was now necessary for her either to surrender her pretensions to this money, or to come forward and defend her citizens, who were holding it only for her use, and in doing so were exposed to the whole power of the Federal judiciary. Accordingly, on the 2d of April, 1803, an act was passed by the Legislature of Pennsylvania requiring the representatives of Mr. Rittenhouse to pay the money into the State Treasury, and directing a suit against them should they refuse. "11The Governor of the State was also required to protect the just rights of the State by any further measures he might deem necessary; and also to protect the persons and property of the ladies f rom any process which might issue out of the Federal Court in consequence of their obedience to this requisition. The act of assembly declared the exercise of jurisdiction by the Court of Appeals was illegally usurped, in contradiction to the just rights of Pennsylvania;- and that the decree of reversat was null and void; so of the decree of the District Court. Pause for a moment to observe the awful positions in which these two sovereignties - that of the United States and that of Pennsylvania - are now placed. The United States were bound to support, with their whole force, the execution of the judgment of their court; and the Governor of Pennsylvania was ordered by its Legislature to resist the execution of that judgment with the whole force of the State. "11We tremble even now," said Judge llopkinson, "1to look back at the precipice on which we stood. A false step on either side might have been ruin to both. Nothing but the most calm and consummate prudence; the most disinterested and mag-nanimous patriotism, could have brought us safely through this mortal crisis. "11The process of the Federal court was issued, and the officer of the court had no choice but to execute it and to conmpel obedience to it by the means given to him by the law. I Richard Peters (1744-1828) was Judge of the United States Dis. trict Court in Pennsylv~ania from 1789 until his death, 1828. His son. Richard Peters, Jr., succeeded Henry Wheaton as Reporter of the Supreme Court. Allihone's Dictionary. Voce PETERS, RICHARD. 191 United States v. Judge Peters, "General Michael Bright, commanding a brigade of the militia of Pennsylvania, received orders from the Governor immediately to have in readiness such a portion of the militia under his command as might be necessary to execute the orders, and to employ them to protect and defend the persons and property of the representatives of Mr. Rittenhouse from and against any process founded on the decree of the District Court of the United States. A guard was accordingly placed by General Bright at the houses of these ladies, and he, with the other defendants in the indictment, opposed, with force, the efforts of the marshal to serve the writ issued to him. The process, however, was served, and the State relieved the ladies, not by waging war upon the United States, but by paying the money according to the judgment of the court. "This is enough of the history of this interesting case for our present object. It was for this resistance to the process of a court of the United States that General Bright, and others of his party, were indicted and brought to trial before Judges Washington and Peters, holding a Circuit Court of the United States."1 "The State court and State cannot interfere with the proceeding and judgments of the United States courts." Tucker, Const. of U. S., II, 801. " When the war passed away and peace returned, the struggle for State rights took on the form of a contest with the Supreme Court. Dominated by the master 1 From Judge Hopkinson's Eulogy upon Justice Washington, quoted in "The Forum," by David Paul Brown, 1, pp. 375-377, where a graphic account is given of the trial of General Bright by Judge Bushrod Washington, who "it was publicly proclaimed would never dare to charge against the defendants." See also synopsis of case by Henry Hitchcock in Constitutional History, etc., p. 84, published by G. P. Putnam's Sons, 1889. See also Carson's accurate account and interesting comments on this case as illustrating the growth of Federal power: History of the Supreme Court U. S., pp. 46, 54, 213. ' The real defendant was the State of Pennsylvania, which, by express legislative act in 1803, had not only claimed the fund to which the controversy related, but, relying upon the Eleventh Amendment, expressly denied the jurisdiction of the Federal court and the validity of its judgment, and required the Governor to resist its execution." Caison, p. 635, 215 and note; Trial of General Bright in U. S. Circuit Court; Report by Richard Peters, Jr., 1809; "The whole proceedings in the case of Olmstead v. Rittenhouse, Phila. 1809; U. S. v. Peters, 5 Cranch, 115 (1809); Ross et a!., Executors, v. Rittenhouse, 2 Dallas, 160 (1872); Journals of Continental Congress, vol. 5, p. 372." Marshall's Constitutional Opinions. 192 mind of John Marshall, the court no longer approached constitutional questions with the old-time caution, and in a long series of decisions asserted its own jurisdiction, upheld the powers of Congress, and set aside laws of the States which in its opinion conflicted with the Federal Constitution. Between 1809, when Marshall handed down his decision in the Olmstead case (United States v. Peters), and 1824, when that of the Bank of the United States v. The Planters' Bank of Georgia was decided, fourteen acts of eleven States were set aside wholly or in part." McMaster, Hist. of People of the U. S., V, 412, and note; Miller, Const. of U. S., 46, note 1, 127. REFERENCES TO UNITED STATES v. JUDGE PETERS, IN MARSHALL MEMORIAL Among his other greatest judgments are United States against Peters, on the sanctity of judgments of the courts of the United States. Justice Horace Gray, I, 70. The want of a strong national sentiment is seen in the adoption of the Constitution by the narrow majority of three in the New York Convention, ten in the Virginia Convention, and nineteen in the Massachusetts Convention, after the most strenuous labors of its advocates, and under the pressure brought about by the annihilation of public credit, the threatened paralysis of commerce, and the impending dissolution of the Confederation. It is shown in bitterly denouncing as unconstitutional abuses of power Washington's proclamation of neutrality in 1793 on the outbreak of the war between England and the French Republic, and the ratification of Jay's treaty with England in 1795. It is exhibited in the case of the United States v. Peters, where the Governor of Pennsylvania ordered out a brigade of militia to obstruct the service of a Federal writ. "Not a year went by," says McMaster,1 "but one or more States bade defiance to the Federal Government." Judge Le Baron Colt, I, 288. In the opposition expressed in the Philadelphia Convention to establishing United States courts of inferior jurisdiction, and in the suggestion that the enforcement of the Federal Constitution and laws should be confided to the State courts, he (Marshall) detected a disposition to emasculate the Federal judiciary by making it a body without limbs, and when occasion arose in 1809 he issued that 1 Hist. of People of U. S., V, 417. For a full history of the facts in this cause see McMaster, Hist. of People of U. S., V, 403-406. 193 United States v. Judge Peters mandamus to Judge Peters which made the subordinate courts of the United States the vigorous and effective hands of the Constitution -enforcing its provisions in every locality- bringing the Federal iaw to the doorway of the citizen - maintaining the supremacy of the United States in every square foot of their territory- without interfering with the power of the State to deal with matters concerning itself and its own citizens, except to administer its justice according to its own laws when they were invoked by a stranger against a resident. Hon.W. Bourke Cockran, 1, 412, 413. In the case of the United States against Peters in 1809, he decided that a State could not annul the judgment, or determine the jurisdiction, or destroy rights, acquired under the judgments of the courts of the United States. Thus he set the National courts above the States. Hon. Henry Cabot Lodge, II, 327. In the case of the United States v. Judge Peters, 5 Cranch, 115, Marshall granted peremptory mandamus to compel a United Stati district judge to enforce obedience to a judgment of his court. Judge Peters pleaded to the rule to show cause, an act of the Pennsylvania Legislature protecting the defendants against Federal process, and said he "was unwilling to embroil the United States wvith Pennsylvania." Marshall held that the Legislature of a State )ould not annul judgments or determine the jurisdiction of the zourts of the United States, and that the Constitution and laws of the United States were the supreme law of the land. Hon. isaaa N. Phillips, II, 388, 389. The controversy was reopened in 1808, in United States v. Peters, decided by Marshall, reported in 5 Cramch, to which, supplemented by the historian Hildreth's interesting account of the enforcement against the State authorities of a peremptory writ of mandamus issued by the Supreme Court, I must refer you. Hon. Henry Hitchcock, II, 509. VoL I. Judge Le Baron B. Colt, p. 297; Justice James T. Mitchell, pp. 483, 484; Hon. John Bassett Moore, p. 518. VoL. IL Hampton L. Crson, Esq., p. 261; Gov. A. B. Cummins, p. 458; Judge Elmer B. Adams, pp. 536, 537. VoL IIL Judge Cornelius H. Hanford, p. 251. 13 THE CONSTITUTION OF THE UNITED STATES FORBIDS A STATE FROM IMPAIRING ITS OWNV CONTRACTS OR GRANTS OF PROPERTY B Y,'SUBSEQ UENT LEGISLA TION. The next case - Fletcher v. Peck - decides several most interesting questions, but its eminent feature is the holding that the prohibition in the Constitution of the United States that "no State shall pass any law impairing the obligation of contracts " applies to the State itself and prohibits the State from impairing contracts made with itself, whether the contracts are executory or executed. Accordingly the title to lands patented under an act of the Legislature of Georgia cannot be impaired by a subsequent act of the Legislature of that State. The case of Fletcher v. Peck is a fitting precursor to the Dartmouth College case and in material respects anticipated its leading doctrine. Fletcher v. Peck. February Term, 1810. [6 Cranch's Reports, 87-148.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: If a court of law can in any case inquire into the motives of members of the Legislature for voting for a law, it cannot do so collaterally in a suit between individuals to which the State is not a party. 195 195 Fletcher v. Peck. Before a law can be pronounced unconstitutional its incompatibility with the Constitution must be clear. Contracts made by a State are within the Constitution of the United States. When a law is a contract a repeal of that law cannot take away rights vested uinder that contract. A grant implies a contract by the grantor not to reassert the title granted. So a grant made in pursuance of a contract is an executed contract, and its obligations cannot be impaired by a law of a State. If a Legislature make a grant of lands in fee simple, a subsequent Legislature cannot take away the title of a bona flde purchaser for a valuable consideration from the first grantee, upon the ground that the grant to the latter was fraudulent. By the Constitution of Georgia of 1789, the Legislature had power to dispose of the unappropriated lands within its limits. An averment in a declaration, that the Legislature had no authority to convey, is not answered by a plea that the Governor had authority to convey. By consent, pleadings were amended in this court, and the cause again heard on the amended pleadings. The lands in question, in this case, did belong to the State of Georgia, and not to Carolina, or the United States. X~n unextinguished Indian title to these, was not absolutely inconsistent with a seisin in fee by the State. On the 7th of Tanuary, 1795, the Legislature of Georgia passed an act authorizing a patent to issue zn Facts in the case to a company called "1The Georgia Clompany," for a certain tract of land within the limits of Marshall's Constitutional Opinions.,9 196 that State; which patent was regularly issued on the 13th of that month. This land passed from hand to hand, until on the 14th of May, 1803, Peck, the defendant in this action, conveyed by deed to Fletcher, the plainti-ff, fifteen thousand acres of the original tract, lying undivided therein. Peck in this deed covenanted. that Georgia, at the time her patent issued, was legally the owner in fee of the land in question, subject only to the extinguishment of the Indian title; that the Legislature of Georgia had good rigfht to sell the same; that the title given by Georgia had been legally conveyed to Peck-, and that this title had been "in no way con stitutionally or legally impaired by virtue of any subsequent act of any subsequent Legislature of the said State of Georgia." Fletcher, however, alleged that the Legislature of Georgria had no right to sell the tract in question; that the members of the Georgia Company had promised members of the Legislature, that, if they would vote for the act authorizing the patent to issue, they should have a share in the lands, by which, he alleged, the act was made of no avail, and so the title of the State of Georgia had never passed to Peck. And he alleged, further, that the Legislature of Georgia, on the 13th of February, 1796, for the reason above stated, annulled the act granting a patent to the Georgia Company. He also alleged that on the 7th of January, 1795, the United States, and not Georgia, owned the lands in question. Fletcher sued Peck in the Circuit Court of the United States for the district of Massachusetts, when all of the facts above related were alleged in the pleadings; judgmnent went against the plaintiff, however, who brought up the case before the Supreme Court. 197 Fletcher v. Peck. In the following opinion of the court,1 so many of the facts in the case are stated, that, with the statement given above, it will be intelligible without a detail of minor points. MARSHALL, Chief Justice. The pleadings being now amended, this cause comes on again to be heard on sundry demurrers, and on a special verdict. Opinion. The suit was instituted on several covenants contained in a deed made by John Peck, the defendant in error, conveying to Robert Fletcher, the plaintiff in error, certain lands which History of the case were part of a large purchase made by James Gunn and others, in the year 1795, from the State of Georgia, the contract for which was made in the form of a bill passed by the Legislature of that State. The first count in the declaration sets forth a breach in the second covenant contained in First count in the decthe deed. The covenant is, "that the laration. Legislature of the State of Georgia, at the time of passing the act of sale aforesaid, had good right to sell and dispose of the same in manner pointed out by the said 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice. WILLIAM CUSHING, SAMUEL CHASE, BUSHROD WASHINGTON, Assoiae Justi THOMAS TODD, Associate Justice WILLIAM JOHNSON, BROOKHOLST LIVINGSTON, Justices Cushing and Chase were absent on account of ill health. The plaintiff sued out his writ of error and the case was twice argued, first by Luther Martin for plaintiff in error, and by John Quincy Adams and R. G. Harper for the defendant, at February term, 1809, and again at this term by Luther Martin for the plaintiff and by R. G. Harper and Joseph Story for the defendant. Marshall's Constitutional Opinions.19 198 act." The breach assigned is that the Legislature had no power to sell. The plea in bar sets forth the Constitution of the State of Georgia, and avers that the lands sold by the defendant to the plaintiff were within that State. It then sets forth the granting act, and avers the power of the Legislature to sell and dispose of the premises as pointed out by the act. To this plea the plaintiff below demurred, and the defendant joined in demurrer. That the Legislature of Georgria, unless restrained by its Legislature of Georgia own Constitution, possesses the power of has power of disposing disposing- of the uaporae lands of the unappropriated unprprae lans ithn ts imtswithin its own limits, in such a manner as its own judgment shall dictate, is a proposition not to be controverted. The only question, then, presented by this demurrer for the consideration of the court, is this: Did the then Constitution of the State of Georgia prohibit the Leglislature to dispose of the lands, which were the subject of this contract, in the manner stipulated by the contract? The question, whether a law be void for its repugnancy Q~uestion whethera to the Constitution, is, at all times, a lw is repugnant to the qetinof mc eiay hc Constitution is a deli-qusin mc decaywhh cateoneought seldom, if ever, to be decided in the affirmative in a doubtful case. The court, when impelled by duty to render such a judgment, would be unworthy of its station could it be unmindful of the solemn obligations which that station imposes. But it is not on sligrht implication and vague conjecture that the Legislature is to be pronounced to have transcended its powers, and its acts to be considered as void. The opposition between the Constitution andI -the law should be such that the judge feels a clear and 199 199 Fieldc er v. Peck.. strong conviction of their incompatibility with each other.' In this case the court can perceive no such opposition. In the Constitution of Georgia, Act of 1795 not repugadopted in the year 1789, the court can nant to the Constituperceive no restriction on the legisla- to fGoga tive power which inhibits the passage of the act of 1795. The court cannot say that, in passing that act, the Legislature has transcended its powers, and violated the Constitution. In overruling the demurrer, therefore, to the first plea, the Circuit Court committed no error. The third covenant is, that all the title which the State of Georgia ever had in the premises had been legally conveyed to John Peck, the grantor. The second count assigns, in substance, as a breach of this covenant, that the original grantees The second count. f romn the State of Georgia promised and assured divers members of the Legislature, then sitting in general assembly, that, if the said members would assent to, and vote for, the passing of the act, and if the said bill should pass, such members should have a share of, and be interested in, all the lands purchased from the said State by virtue of such law; and that divers of said members, to whom the said promises were made, were unduly influenced thereby, and under such influence did vote for the passing of the said bill; by reason whereof 1 This delicate duty of the judicial department has led to the rule now well established, that the court usurps legislative functions when it presumes to adjudge a law void where the repugnancy between the law and Constitution is not established beyond reasonable doubt. Tucker on Const. of U. S., 1, 377. Marshall's Constitutional Opinions.20 200 the said law was a nullity, etc.; and so the title of the State of Georgia did not pass to the said Peck, etc. The plea to this count, after protesting that the promises it alleges were not made, avers that, until after the purchase made from the original grantees by James Greenleaf, under whom the said Peck claims, neither the said James Greenleaf, nor the said Peck, nor any of the mesne vendors between the said Greenleaf and Peck, had any notice or knowledge that any such promises or assurances were made by the said original grantees, or either of them, to any of the members of the Legislature of the State of Georgo-ia. To this plea the plaintiff demurred generally, and the defendant joined in the demurrer. That corruption should find its way into the governments of our infant republics and contaminate the very source of leogislation or that finpure moOn corruptions in Leg- Z islature: how far may a tives should contribute to the passage court be competent ton vacate acontract of a law, or the formation of a legislative contract, are circumstances most deeply to be deplored. How far a court of justice would in any case be competent, on proceedings instituted by the State itself, to vacate a contract thus formed, and to annul rights acquired under that contract by third persons having no notice of the improper means by which it was obtained, is a question which the court would approach with much circumspection. It may well be doubted how far the validity of a law depends upon the motives of its framers, and how far the particular inducements, operatingr on members of the supreme sovereign power of a State, to the formation of a contract by that power, are examinable in a court of justice. If the principle be conceded that an act of the supreme sovereign power might be de 201 21Fletcher v. Peck. clared null by a court, in consequence of the means which procured it, still would there be much difficulty in saying to what extent those means must be applied to produce this effect. Must it be direct corruption, or would interest or undue influence of any kind Idem be sufficient? Must the vitiating cause operate on a majority, or on what number of the members'? Would the act be null, whatever might be the wish of the Nation, or would its obligation or nullity depend upon the public sentiment? If the majority of the Legislature be corrupted, it may well be doubted whether it be within the province of the judiciary to control their conduct; and if less than a majority act from impure motives, the principle Idem. by which judicial interference would be regulated is not clearly discerned. Whatever difficulties this subject might present, when viewed under aspects of which it may be susceptible, this court can perceive none in the particular pleadings now under consideration. This is not a bill brought by the State of Georgia to annul the contract, nor does it appear to the court, by this count, that the State of Georgia is dissatisfied with the sale that has been made. The case, as made out in the pleadings, is simply this: One individual who holds lands in the State of Georgia, under a deed covenanting that the title of Georgia was in the On the pleading this is grantor, brings an action of covenant a case upon a private contract between two upon this deed and assigns as a breach individuals that some of the members of the Legislature were induced to vote in favor of the law which constituted the contract, by being promised an interest in it, and that therefore the act is a mere nullity. Marshall's Constitutional Opinions. 202 This solemn question cannot be brought thus collaterally and incidentally before the court. It would be indecent in the extreme, upon a private The solemn question of corruption cannot be contract between two individuals, to brought up collaterally or incidentally. enter into an inquiry respecting the corruption of the sovereign power of a State. If the title be plainly deduced from a legislative act which the Legislature might constitutionally pass, if the act be clothed with all the requisite forms of a law, a court, sitting as a court of law, cannot sustain a suit brought by one individual against another founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the Legislature which passed the law. The Circuit Court therefore did right in overruling this demurrer. The fourth covenant in the deed is, that the title to the premises has been in no way constituFourth covenant. tionally or legally impaired by virtue of any subsequent act of any subsequent Legislature of the State of Georgia. The third count recites the undue means practised on certain members of the Legislature, as stated The third count. in the second count, and then alleges that, in consequence of these practices and of other causes, a subsequent Legislature passed an act annulling and rescinding the law under which the conveyance to the original grantees was made, declaring that conveyance void, and asserting the title of the State to the lands it contained. The count proceeds to recite at large this rescinding act, and concludes with averring that, by reason of this act, the title of the said Peck in the premises was constitutionally and legally impaired, and rendered null and void. 203 ' 203 Fletcher v. Peck. After protesting as before, that no such promises were made as stated in this count, the de- Defendant pleads pur. fendant again pleads that himself and chaser without notice. the first purchaser under the original grantees, and all intermediate holders of the property, were purchasers without notice. To this plea there is a demurrer and joinder. The importance and the difficulty of the questions presented by these pleadings are deeply felt by the court. The lands in controversy vested absolutely in James Gunn and others, the original grantees, Lands vested absoby the conveyance of the Governor, lutely in James Gunn. made in pursuance of an act of Assembly to which the Legislature was fully competent. Being thus in full possession of the legal estate, they, for a valuable consideration, conveyed portions of the land to those who were willing to purchase. If the original transaction was infected with fraud, these purchasers did not participate in it, and had no notice of it. They were innocent. Yet the Legislature of Georgia has involved them in the fate of the first parties to the transaction, and, if the act be valid, has annihilated their rights also. The Legislature of Georgia was a party to this transaction; and for a party to pronounce A party cannot pronounce its own deed its own deed invalid, whatever cause invalid may be assigned for its invalidity, must be considered as a mere act of power, which must find its vindication in a train of reasoning not often heard in courts of justice. But the real party, it is said, are the people, and when their agents are unfaithful, the acts of those agents cease to be obligatory. It is, however, to be recollected that the people can act only by these agents, and that while within the Marshall's Constitutional Opinions. 204 powers conferred on them, their acts must be considered as the acts of the people. If the agents be corrupt, others may be chosen; and if their contracts be examinable, the common sentiment as well as common usage of mankind points out a mode by which this examination may be made, and their validity determined. If the Legislature of Georgia was not bound to submit its pretensions to those tribunals which are established for the security of property, and to decide on human rights, if it might claim to itself the power of judging in its own case, yet there are certain great principles of justice, whose authority is universally acknowledged, that ought not to be entirely disregarded. If the Legislature be its own judge in its own case, it would seem equitable that its decision should be regulated by those rules which would have regulated the decision of a judicial tribunal. The question was in its nature a question of title, and the tribunal which decided it was either acting in the character of a court of justice, and performing a duty usually assigned to a court, or it was exerting a mere act of power in which it was controlled only by its own will. If a suit be brought to set aside a conveyance obtained by fraud, and the fraud be clearly Rights of third parties in suit to set aside con- proved, the conveyance will be set veyance for fraud. aside, as between the parties; but the rights of third persons, who are purchasers without notice, for a valuable consideration, cannot be disregarded. Titles which, according to every legal test, are perfect, are acquired with that confidence which is inspired by the opinion that the purchaser is safe. If there be any concealed defect arising from the conduct of those who had held the property long before he acquired it, 205 Fletcher v. Peck. of which he had no notice, that concealed defect cannot be set up against him. He has paid his money for a title good at law; he is innocent, whatever may be the guilt of others, and equity will not subject him to the penalties attached to that guilt. All titles would be insecure, and the intercourse between man and man would be very seriously obstructed, if this principle be overturned. A court of chancery, therefore, had a bill been brought to set aside the conveyance made to James Gunn Idem. and others, as being obtained by improper practices with the Legislature, whatever might have been its decision as respected the original grantees, would have been bound by its own rules, and by the clearest principles of equity, to leave unmolested those who were purchasers, without notice, for a valuable consideration. If the Legislature felt itself absolved from those rules of property which are common to all the citizens of the United States, and from those principles of equity which are acknowledged in all our courts, its act is to be supported by its power alone, and the same power may devest any other individual of his lands, if it shall be the will of the Legislature so to exert it. It is not intended to speak with disrespect of the Legislature of Georgia, or of its acts. Far;No disrespect intended from it. The question is a general toward the Georgia question, and is treated as one. For Legislature. although such powerful objections to a legislative grant as are alleged against this may not again exist, yet the principle on which alone this rescinding act is to be supported may be applied to every case to which it shall be the will of any Legislature to apply it. The principle is this: that a Legislature may by its own act devest the Marshall's Constitutional Opinions.20 206 vested estate of any man whatever, for reasons which shall by itself be deemed sufficient. In this case the Legislature may have had ample proof that the original grant was obtained by practices which can never be too much reprobated, and which would have justified its abrogation, so far as respected those to whom crime was imputable. But the grant, when issued, conveyed an estate in fee simple to the grantees, clothed with all the solemnities which law can bestow. This estate wvas transferable; and those who purchased parts of it were not stained by that guilt which infected the original transaction. Their case is not distinguishable Purhaersofalealfrom the ordinary case of purchasers of estate without notIce a leogal estate ihu knowledge o of fi aud a case ine itoto point any secret fraud wvhich might have led to the emanation of the original g-rant. According to the well known course of equity, their rights could not be affected by such fraud. Their situation was the same, their title was the same with that of every other member of the community who holds land by regular conveyances from the original patentee. Is the power of the Legislature competent to the annihilation of such title, and to a resumption of the property thus held? The principle asserted is, that one Legislature is competent to repeal any act which a former Legislature was competent to pass, and that one Legislature cannot abridge the powers of a succeeding Legislature.1 The correctness of this principle, so far as respects general legislation, can never be controverted. But if an act be done under a law, a succeeding, Legislature cannot 1 Marshall did not (where the law is a contract) adopt the English principle as to Acts of Parliament. See B1. Coin., Book I, c. 11, p. 186. 207 207 Fletcher v. Peck. undo it. The past cannot be recalled by the most absolute power. Conveyances have been made, those conveyances have vested legal estates, and if those estates may be seized by the sovereign authority, still, that they originally vested is a fact, and cannot cease to be a fact. When, then, a law is in its nature a contract, when absolute rights have vested under that Mhsvse ne contract, a repeal of the law cannot contract law cannot I be divested by repeal devest those rights; and the act of Ifsaid law. annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without cornpensation? 1 To the Legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public be in the nature of the legislative power, is well worthy of serious reflection. It is the peculiar province of the Legislature to prescribe general rules for the government of society; the application of those rules to individuals in society would seem to be the duty of other departments. How far the power of giving the law may involve every other power, in cases where the Constitution is silent, never has been, and perhaps never can be, definitely stated. The validity of this rescinding- act, then, might be doubted, were Georgia a singrle sovereign power. But I On this point see Chief Justice Chase in the Legal Tender Cases, 12 Wall. 581, and Justice Miller in Loan Ass'n v. Topeka, 20 Wall. 650'. Marshall's Constitutional Opinions. 208 Georgia cannot be viewed as a single, unconnected, sovereign power, on whose Legislature no other restrictions are imposed than may be found in its own Constitution. She is a part of a large empire; she is a member of the American Union; and that Union has a Constitution, the supremacy of which all acknowledge, and which imposes section 10 of article I limits to the Legislatures of the several of the Constitution. States, which none claim a right to pass. The Constitution of the United States declares that "no State shall pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts."' Does the case now under consideration come within this prohibitory section of the Constitution? In considering this very interesting question we immediately ask ourselves, What is a contract? Is a grant a contract? A contract is a compact between two or more parties, and is either executory or executed. Contract defined; various kinds of con- An executory contract is one in which tracts. a party binds himself to do, or not to do, a particular thing; such was the law under which the conveyance was made by the Governor. A contract executed is one in which the object of contract is performed; and this, says Blackstone, differs in nothing from a grant. The contract between Georgia and the purchasers was executed by the grant. A contract exeA grant implies a con- cuted, as well as one which is executlacton art grantor tory, contains obligations binding on granted grantedthe parties. A grant, in its own nature, I It is remarkable that this very important clause was passed over almost without comment during the discussions preceding the adoption of that instrument (the Constitution of the United States) It is but twice alluded to in the papers of The Federalist, in Nos. 7 and 44. Cooley, Const. Lim. 273, 274. 209 Fletcher v. Peck. amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is therefore always estopped by his own grant. Since, then, in fact, a grant is a contract executed, the obligation of which still continues, and Agrant is an executed since the Constitution uses the general contract. term " contracts," without distinguishing between those which are executory and those which " Contracts" under are executed, it must be construed to the? onstitution concomprehend the latter as well as the both kindsof contracts former. A law annulling conveyances between individuals, and declaring that the grantors should stand seized of their former estates, notwithstanding those grants, would be as repugnant to the Constitution as a law discharging the vendors of property from the obligation of executing their contracts by conveyances. It would be strange if a contract to convey was secured by the Constitution, while an absolute conveyance remained unprotected. If, under a fair construction of the Constitution, grants 1 are comprehended under the term "contracts," is a grant from the State excluded cos o from the operation of the provision? Is the clause to be considered as inhibiting the State from impairing the obligation of contracts between two individuals, but as excluding from that inhibition contracts made with itself? The words themselves contain no such distinction." 1 See Von Hoist on Const. Law of U. S., 232, 233. 2 "A private corporation, whether civil or eleemosynary, is a contract between the Government and the corporators; and the Legislature cannot repeal, impair or alter the rights and privileges conferred by the charter against the consent and without the 14 Marshall's Constitutional Opinions.21 210 They are greneral, and are applicable to contracts of every description. If contracts made with the State are to be exempted from their operation, the exception miust arise from the character of the contracting party, not from the words which are employed. Whatever respect might have been felt for the State sovereignties, it is not to be disguised that the Idem 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, exposed. The restrictions on the legislative power of the States are obviously founded in this sentiment; and the Constitution of the United States contains what may be deemed a bill of rights for the people of each State. "11No State shall pass any bill of attainder, exe yost facto law, or law impairing the obligation of contracts." A bill of attainder may affect the life of an individual, or may confiscate his property, or may do both.' default of the corporation, judicially ascertained and declared." Kent, Corn. (12th Ed.), 11, *306. This principle was settled in the case of Dartmouth College v. Woodward, 4 Wheaton, 518, nine years later, and declared and asserted by the Supreme Court in various cases prior to that great decision. In the Dartmouth College case, Justice Story even went so far as to say that "1Grants of property and of franchises, coupled with an interest, to public or political corporations, are beyond legislative controll, equally as in the case of the property of private corporations," Post, pp. 299-338. 1 For a full exposition of the subject of bills of attainder and bills of pains and penalties, see Cummings v. Missouri, 4 Wall. 277, and Ex parte Garland, 4 Wall. 3333. 211 211 Fletcher v. Peck. 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 impair 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 ren- Efxpst facto law deders an act punishable in a manner in fnd 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 punishment. 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 annulling the title by which he holds that estate? The court can perceive no sufficient grounds for making this distinction. This rescinding, act would have the effect of an erepost facto law. It forfeits the estate of Fletcher for a crime not committed by himself, but by those froiu whom he purchased. This cannot be effected in the form of an expostfacto law, or bill of attainder; why, then, is it allowable in the form of a law annulling the original grant? 1 This definition is distinguished for its comprehensive brevity and precision, and it extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. Kent, Corn. (12th Ed.), 1, *409. See also Tucker on Const. of the United States, 11, 655. Marshall's Constitutional Opinions. 212 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 ingrafted 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 contract? 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 Opinion of court on purchaser for a valuable consideration, this point, 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 Constitution of the United States, from passing a law whereby the estate of the plaintiff in the premises so purchased could be constitutionally and legally impaired and rendered null and void.1 In overruling the demurrer to the third plea, therefore, there is no error. 1 The case of Fletcher v. Peck first brought this prohibitory clause into direct discussion. Kent, Com. (12th Ed.), I, *413; Miller on the Const. 555. 213 213 Fletcher v. Peck. The first covenant in the deed is that the State of Georgia, at the time of the act of the Legislature thereof, entitled as aforesaid, was legally seized in fee of the soil thereof, subject only to the extinguishment of part of the Indian title thereon. The fourth count assigns as a breach of this covenant, that the right to the soil was in the United States, and not in Georgia. To this count the defendant pleads that the State of Georgia was seized; and tenders an issue on the fact, in which the plaintiff joins. On this issue a special verdiet is found. The jury find the grant of Carolina by Charles Second to the Earl of Clarendon and others, comprehending the whole country from 36 degrees, 30 minutes, north latitude, to 29 degrees, north latitude, and from the Atlantic to the South Sea.' They find that the northern part of this territory was afterwards erected into a separate colony, and that the most northern part of the 35th degree of north latitude was the boundary line between North and South Carolina. That seven of the eight proprietors of the Carolinas surrendered to George Second, in the year 1729, who appointed a governor of South Carolina. That in 1732 George the Second granted to the Lord Viscount Percival and others seven-eighths of the territory between the Savannah and the Alatamaha, and extending west to the South sea; and that the remaining eighth part, which was still the property of the heir of Lord Carteret, one of the original grantees of Carolina, was 1 For a full discussion of "Title by Discovery " see case of John~son v. McIntosh, 8 Wheaton, 543. Marshall's Constitutional Opinions. 214 afterwards conveyed to them. This territory was constituted a colony and called Georgia. That the governor of South Carolina continued to exercise jurisdiction south of Georgia. That in 1752 the grantees surrendered to the Crown. That in 1'754 a governor was appointed by the Crown, with a commission describing the boundaries of the colony. That a treaty of peace was concluded between Great Britain and Spain, in 1763, in which the latter ceded to the former Florida, with Fort St. Augustin and the bay of Pensacola. That in October, 1763, the King of Great Britain issued a proclamation, creating four new colonies, Quebec, East Florida, West Florida, and Grenada, and prescribing the bounds of each; and further declaring that all the lands between the Alatamaha and St. Mary's should be annexed to Georgia. The same proclamation contained a clause reserving, under the dominion and protection of the Crown, for the use of the Indians, all the lands on the western waters, and forbidding a settlement on them, or a purchase of them from the Indians. The lands conveyed to the plaintiff lie on the western waters. That in November, 1763, a commission was issued to the governor of Georgia, in which the boundaries of that province are described as extending westward to the Mississippi. A commission describing boundaries of the same extent was afterwards granted in 1764. That a war broke out between Great Britain and her colonies, which terminated in a treaty of peace acknowledging them as sovereign and independent States. That in April, 1787, a convention was entered into be 216 215 Fletcher v. Peck, tween the States of South Carolina and Georgia, settling the boundary line between them. The jury afterwards describe the situation of the lands mentioned in the plaintiff's declaration, in such manner that their lying within the limits of Georgia, as defined in the proclamation of 1763, in the treaty of peace, and in the convention between that State and South Carolina, has not been questioned. The counsel for the plaintiff rest their argument on a single proposition. They contend that Pitmd ypanif the reservation for the use of the IndiansPotaebpatif contained in the proclamation of 1763 excepts the lands on the western waters from the colonies within whose bounds they would otherwise have been, and that they were acquired by the revolutionary war. All acquisitions during, the war, it is contended, were made by the joint arins, for the joint benefit of the United States, and not for the benefit of any particular State. The court does not understand the proclamation as it is understood by the counsel for the plaintiff. The reservation for the use of the Indians appears to be a temporary arrangement suspending, for a time, the settlement of the country reserved, and the powers of the royal governor within the territory reserved, but is not conceived to amount to an alteration of the boundaries of the colony. If the language of the proclamation be in itself doubtful, the commissions subsequent thereto, which were given to the governors of Georgia, entirely remove the doubt. The question, whether the 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 shalke the American confederacy Marshall's Constitutional Opinions. 216 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 amount to a decision that their grantee might maintain an ejectment for them, notwithstanding that title. The majority of the court is of opin.ion 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 repugnant to seizin in fee on the part of the state.' Judgment affirmed, with costs. NOTE. Congress have the exclusive right to pre-emption to all Indian lands lying within the territory of the United States. This doctrine was laid down in the case of Fletcher v. Peck and Johnson v. M'Intosh (8 Wheaton, 543). Marshall's views as to the nature of the Indian title have never been departed from. See Cherokee Nation 1 This was the language of the majority of the court. It was a mere naked declaration, without any discussion or reasoning by the court in support of it. Kent, Com. (12th Ed.), III, *378. Justice Johnson dissented on two points in this case, one of them being the above. He held that the Indian nations were absolute proprietors of the soil. 217 Fletcher v. Peck. v. State of Georgia, 5 Peters, 1; United States v. Cook, 119 Wallace, 591. The distinguishing feature of Fletcher v. Peck is that a State is bound equally with natural persons and cannot impair its sales of property by subsequent legislation any more than an individual can defeat a sale of property by his own acts Miller on Const. of U. S. 556. See also Life of John Marshall by Allan B. Magruder, 187-190; Van Santvoord, Lives of Chief Justices, 361; State of New Jersey v. Wilson, 7 Cranch, 164; Dartmouth College Case, infra, and notes. REFERENCES TO FLETCHER v. PECK, IN MARSHALL MEMORIAL. VoL I. Justice Horace Gray, pp. 70, 93; Hon. Charles Freeman Libby, p. 120; Prof. James Bradley Thayer, p. 234; Justice James T. Mitchell, p. 484; Hon. John Bassett Moore, p. 518. VoL II. Judge James C. MacRae, pp. 75, 79, 80; Hampton L. Carson, Esq., p. 261; Hon. John F. Follett, p. 276; Hon. William A. Ketcham, pp. 291, 292; Hon. Henry Cabot Lodge, pp. 327, 329; Isaac N. Phillips, Esq., p. 389; Gov. A. B. Cummins, p. 458; Hon. Henry Hitchcock, p. 515. VoL IIL Judge T. B. McFarland, p. 184; Hon. George IL Williams, p. 220; Judge Cornelius H. Hanford, p. 250. THE ADMIRALTY AND MARITIME JURISDICTION OF THE FEDERAL CO UR TS UNDER THE CONSTITUTION AND THE CRIMES ACT 01 1790. United States v. Bevans. February Term, 181& [3 Wheaton's Reports, 337-391.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The article of the Constitution which describes the judicial power, and extends it to cases of admiralty and maritime jurisdiction, does not make a cession of territory or of general jurisdiction, so as to vest in the United States the shores of the sea below lowvwater mark. By the eighth section of the Crimes Act of April 30, 1790, Congress has not conferred jurisdiction on the Circuit Court to try an indictment for a murder committed on board a ship of war lying in the harbor of Boston, within the jurisdiction of the State of Massachusetts. Bevans was a marine on board the United States ship Independence; and while this ship was Facts in the caselyninBsohabrwtinheims lyng nBso abr ihntelmt wherein the process of the courts of Massachusetts had always been served, he killed the cook's mate of said 219 United States v. Bevans. ship. He was tried for this act before the United States Circuit Court for the district of Massachusetts and found guilty. A motion for a new trial was then made; but the judges of that court being opposed in opinion as to the case being within their jurisdiction, it was brought to the Supreme Court for decision. The opinion of the court' was delivered on the 21st of February, as follows: MARSHALL, Chief Justice The question proposed by the Circuit Court which will be first considered opinion. is,Whether the offense charged in this indictment was, according to the statement of facts which accompanies the question, "within the jurisdiction or Is this case as charged cognizance of the Circuit Court of the and by the facts properly within jurisdiction United States for the district of Mas- of the Circuit Court of the United States. sachusetts?" The indictment appears to be founded on the eighth section of the "Act for the punishment of certain crimes against the United States." That section gives the courts of the Union cognizance of certain offenses committed on the high seas, or in any river, haven, basin, or bay out of the jurisdiction of any particular State. 1 The court was constituted as follows: JOHN MARSHALL, Chief Justica BUSHROD WASHINGTON9 WILLIAM JOHNSON, 13ROCKHOLST LIVINGSTON, Associate Justice& THOMAS TODD, GABRIEL DUVALL, I JOSEPH STORY, J Mr. Webster appeared for the defendant. Mr. Wheaton and Attorney-General William Wirt appeared for the United States. Marshall's Constitutional Opinions. 220 Whatever may be the constitutional power of Congress, it is clear that this power has not been so exercised in this section of the act as to confer on its courts jurisdiction over any offense committed in a river, haven, basin, or bay, which river, haven, basin, or bay is within the jurisdiction of any particular State. What, then, is the extent of jurisdiction which a State possesses? We answer, without hesitation, the jurisdiction of a Jurisdiction of a State State is co-extensive with its territory; defined. co-extensive with its legislative power. The place described is unquestionably within the original territory of Massachusetts. It is, then, within the jurisdiction of Massachusetts, unless that jurisdiction has been ceded to the United States. It is contended to have been ceded by that article in the Constitution which declares that " the judicial power Defendant argues this shall extend to all cases of admiralty is a case admiraty and maritime jurisdiction." The argution. ment is, that the power thus granted is exclusive; and that the murder committed by the prisoner is a case of admiralty and maritime jurisdiction. Let this be admitted. It proves the power of Congress to legislate in the case; not that Congress has exercised that power. It has been argued, and the argument in favor of as well as that against the proposition deserves great consideration, that courts of common law have concurrent jurisdiction with courts of admiralty over murder committed in bays, which are inclosed parts of the sea; and that for this reason the offense is within the jurisdiction of Massachusetts. But in construing the act of Congress, the court believes it to be unnecessary 1 Thorpe, Const. Hist. of U. S., II, 490. 221 United States v. Bevans. to pursue the investigation which has been so well made at the bar respecting the jurisdiction of these rival courts. To bring the offense within the jurisdiction of the courts of the Union, it must have been Location, not the natcommitted in a river, etc., out of the ure of the offense, the guide as to jurisdicjurisdiction of any State. It is not the tion. offense committed, but the bay in which it is committed, which must be out of the jurisdiction of the State. If, then, it should be true that Massachusetts can take no cognizance of the offense, yet, unless the place itself be out of her jurisdiction, Congress has not given cognizance of that offense to its courts.' If there be a common jurisdiction, the crime cannot be punished in the courts of the Union. Can the cession of all cases of admiralty and maritime jurisdiction be construed into a cession of the waters on which those cases may arise?2I This is a question on which the court is incapable of feeling a doubt. The article which dezn Article which desct ibes scribes the judicial power of the United judicial power of the United States not inStates is not intended for the cession tended for the cession of territory or of genof territory or of general jurisdiction. eral jurisdiction It is obviously designed for other purposes. It is in the eighth section of the second article we are to look for cessions of territory and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased, by the conI In the case of the United States v. Wiltberger, 5 Wheaton, 76, it was decided that the United States courts had no jurisdiction over the crime of manslaughter committed on board a vessel of the United States lying in a foreign harbor, because the act of Congress of April 30, 1790, ch. 9, seo. 12, did not reach such a case. 2Tucker on the Const. of U. S., II, 780. Marshall's Constitutional Opinions.22 222 sent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildingrs. It is observable that the power of exclusive legislation (which is jurisdiction) is united with cession of territory, which is to be the free act of the States. It is difficult to compare the two sections tog-ether without feeling a conviction, not to be strengrthened by any commentary on them, that, in describing the judicial power, the framers of our Constitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction. It is not questioned that whatever may be necessary to the full and unlimited exercise of admiralty and maritime jurisdiction is in the government of the Union. The "1necessary and Congress may pass all laws which are proper 1 clause here brought up. necessary and proper for giving the most complete effect to this power.' Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts. Suppose, for example, the power of regulating trade, had not been griven to the General Government. Would this extension of the judicial power to all cases of admiralty and maritime jurisdiction have devested Massachusetts of the power to regulate the trade of her bay? As the powers of the respective governments now stand, if two citizens of Massachusetts 1 Tucker on Const. of the United States, 11, 773. See Waring v. Clark, 5 How. 441, where the Supreme Court held that the admiralty jurisdiction was not limited or to be interpreted by the E~nglish admiralty rules. Why the English rule cannot be maintained in the United States is explained by Chief Justice Taney in the great and leading case of The Genesee Chief, 12 How. 443. 223 223 United States v. Bevans. step into shallow water when the tide flows, and fight a duel, are they not within the jurisdiction and punishable by the laws of Massachusetts? If these questions must be answered in the affirmative, and we believe they must, then the bay in which this murder was committed is not out of the jurisdiction of a State, and the Circuit Court of Massachusetts is not authorized by the section under consideration to take cognizance of the murder which has been committed. It may be deemed within the scope of the question certified to this court to inquire whether any other part of the act has given cognizance of this murder to the Circuit Court of Massachusetts? The third section enacts, "1that if any person or persons shall, within any fort, arsenal, Wording of the third dock-yard, magazine, or in any other section place or district of country under the sole and exclusive jurisdiction of the United States, commit the crime of wilful murder, such person or persons, on being, thereof convicted, shall suffer death." Although the bay on which this murder was committed might not be out of the jurisdiction of M~assachusetts, the ship of war on the deck of which it was committed is, it has been said, "a place within the sole and exclusive jurisdiction of the United States," whose courts may consequently take cognizance of the offense. That a government which possesses the broad power of war, which "1may provide and maintain a navy," which "46may make rules for the government and regulation of the land and naval forces," has power to punish an offense committed by a marine on board a ship of war, wherever that ship may lie, is a proposition never to be Marshall's Constitutional Opinions. 224 questioned in this court.1 On this section, as on the eighth, the inquiry respects not the extent of the power of Congress, but the extent to which that power has been exercised. The objects with which the word "place " is associated are all, in their nature, fixed and territorial. A fort, an arsenal, a dock-yard, a magazine, are all of this character. When the sentence proceeds with the words, "or in any other place or district of country under the sole and exclusive jurisdiction of the United States," the construction seems irresistible that by the words "other place" was intended another place of a similar character with those previously enumerated, and with that which follows. Congress might have omitted, in its enumeration, some similar place within its exclusive jurisdiction, which was not comprehended by any of the terms employed, to which some other name might be given; and therefore the words " other place" or " district of country " were added; but the context shows the mind of the Legislature to have been fixed on territorial objects of a similar character. This construction is strengthened by the fact that, at the time of passing this law, the United States did not possess a single ship of war. It may therefore be reasonably supposed that a provision for the punishment of crimes in the navy might be postponed until some provision for a navy should be made. While taking this view of the subject, it is not entirely unworthy of remark that afterwards, when a navy was created, and Congress did proceed to make rules for its regulation and government, no jurisdiction is given to the courts of the United States of any crime committed in a ship of 1 Tucker on Const. of U. S., II, 780, 800; Kent, Com. (12th ed.), I, 361. 225 United States v. Bevans. war, wherever it may be stationed. Upon these reasons the court is of opinion that a murder committed on board a ship of war, lying within the harbor of Boston, is not cognizable in the Circuit Court for the district of Massachusetts; which opinion is to be certified to that court. The opinion of the court on this point is believed to render it unnecessary to decide the question respecting the jurisdiction of the State court in the case. NOTE. The admiralty jurisdiction of the Federal courts has, by constructions placed upon it by those courts, received an immense increase in its extent. Down to 1851 it was held to be limited in fact to the seaboard, if not actually to the sea. It extended no further on the rivers than the tide ebbed and flowed. But the Supreme Court of the United States has since decided that it extended to all navigable streams; that it was a system of laws intended to have operation upon the interests of navigation; that whether it took place upon salt or fresh water was entirely immaterial, and that the Constitution of the United States, when it declared that the Federal courts should have jurisdiction in admiralty, meant that they should have jurisdiction in all that class of cases which heretofore have been called admiralty cases, whether they grew out of salt water transactions or of engagements and acts upon fresh water. "11 The old opinion that the power extended only to tide water has been wholly abandoned. Wherever navigation exists in the United States, there this constitutional provision extends." The Magnolia, 20 How. 296, and The Genesee Chief, 12 How. 443. Von Holst, Const. Law of the United States, 218; s. P., Justice Gray in Marshall Memorial, I, 74, 75. "This criminal jurisdiction of the admiralty is therefore exclusively vested in the National Government; and may be exercised over such crimes and offenses as Congress may, from time to time, delegate to the cognizance of the National courts." Story, Com., III, ch. xxxviiim, ~ 1667. 15 RESPECTIVE CONSTITUTIONAL POWERS OF THE GENERAL AND STATE GO VERNMENTS AS TO BANKRUPT AND INSOL VENT LAWS. THE AUTHORITY OF THE STATES IS SUBJECT TO THE CONTRACT-CLAUSE OF THE FEDERAL CONSTITUTION. The opinion in the next case--Sturges v. Crowninshield--has always been ranked as among the great judgments of Chief Justice Marshall. It has stood the test of time and the exact point decided has never been disturbed. It has all of Marshall's characteristics. Though it relates to a most delicate, interesting and complex subject, not a single authority is cited. Its reasonings are drawn from his own ample intellectual resources. The scope of the contract-clause of the Cbnstitution (article 1, section 10), declaring that no State shall pass "any law impairing the obligation of contracts," is considered in all its aspects, historical and legal, and in connection with the bankruptcy-clause of the Constitution giving Congress the power (article 1, section 8) "1to establish uniform laws on the subject of bankruptcies throughout the United States," and the conclusion is reached that although the States have authority to pass insolvent or even bankrupt laws in the absence of an act of Congress conflicting with such State laws, yet that this power of the States is subject to the limitation of the Federal Constitution that no State law shall impair the obligation of contracts, and State laws cannot, therefore, discharge the debtor from subsisting contracts. 227 Sturges v. Crowninsh.eld. The same difficult question came again before the court in Chief Justice Marshall's time in Ogden v. Saunders,1 where a majority of the court held that this limitation on the power of the States did not apply as to contracts made after the enactment of the State law; but also held that such State laws even as to subsequent contracts could not affect the rights of creditors who are citizens of other States. Mr. Phelps' comment on these cases will not fail to interest the reader. He says: "It is to be remembered further that in only one of all those decisions did the majority of the court fail to concur with Marshall. In the case of Ogden v. Saunders, where the power of the States to pass bankrupt or insolvent laws was discussed, he was for the first and last time in the minority. Four of the judges- against the opinion of Judges Marshall, Story and Duvall - sustained the power of the States to pass such a law; but all concurred in the judgment in that case, which was that a discharge under such a law could not affect a creditor outside the jurisdiction who had not thought proper to appear and become a party to the proceeding. I need hardly say to an assemblage of lawyers that as the half century that has passed away since most of those decisions were rendered has completely established and confirmed and rendered plainer and plainer the soundness and the wisdom of the law they involve, so experience has likewise shown that in this solitary instance in which his opinion was rejected the Chief Justice was right. He correctly anticipated with a far-reaching sagacity what would be the result of a system of insolvency that discharges a debtor in one State and fails to discharge him 112 Wheaton's Reports, 213 (1827). Marshall's Constitutional Opinions. 228 in another; that pays one creditor who is within the State and fails to pay another who is without it. And he clearly perceived that if that great power was to be reposed at all in the Federal Government as it is and of necessity must be, it ought to be an exclusive power. There is the only and mistaken instance in which his judgment on a constitutional question did not become the law of the land."' Professor Thayer, on the other hand, approves the majority view in Ogden v. Saunders. He says: "In the great bankruptcy cases of Sturges v. Crowninshield and Ogden v. Saunders, where it was held, in 1819 and 1827, that the constitutional provisions as to the impairment of contracts forbade the State to enact an insolvency law which should discharge a person from liability on a contract made before the law; and then again that it did not forbid the same thing as touching a contract made after the law, Marshall, who gave the opinion in the first case, put it on a ground equally applicable to the second; and so in the second case gave a dissenting opinion. The obligation of the contract, he said, comes from the agreement of the party; it does not arise from the law of the State at the time it was made, entering into or operating on the contract. But this doctrine and this reasoning were justly disallowed." 2 The reasons and grounds in support of the proposition that the power of Congress to pass a bankruptcy act proper, i. e., one providing for the discharge of a debtor from his contracts without performance thereof, is ex1 Marshall Memorial, III, 388, 389. 2John Marshall: By James Bradley Thayer, 1901. (Houghton, Mifflin & Co., Riverside Biographical Series.) 229 229 Sturges v. Crowninshield. elusive, is strongly put by Mr. Webster in his argument in the case of Ogden v. Saunders.' Marshall's dissenting opinion in Ogden against Saunders will be found in a subsequent part of the present volume. In the subsequent ease of Boyle v. Zacharie, 6 Peters, 348 (1832), in answer to an inquiry by Mr. Wirt, Marshall, Chief Justice, said: "The judges who were in the minority of the court upon the general question as to the constitutionality of State insolvent laws concurred in the opinion of Mr. Justice Johnson in the case of Ogden v. Saunders, 12 Wheat. 213. That opinion is therefore to be deemed the opinion of the other judges who assented to that judgment. Whatever principles are established in that opinion are to be considered no longer open for controversy, but the settled law of the court." See to the same effect the same case, reported in 6 Peters, at page 635, where the opinion is given by Mr. Justice Story. Sturges v. Crowninshield. February Term, 1819. [4 Wheaton's Reports, 122-208.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The act of the Legislature of the State of New York, passed on the 3d of April, 1811 (which not only liberates the person of the debtor, but discharges 1 Works of Daniel Webster, Little & Brown's edi tion, 1851, Vol. V1, 24 et seg. Marshall's Constitutional Opinions. 230 him from all liability of any debt contracted previous to his discharge on his surrendering his property in the manner it prescribes), so far as it attempts to discharge the contract, is a law impairing the obligation of contracts within the meaning of the Constitution of the United States, and is not a good plea in bar to an action brought upon such contract, in a court the proceedings of which the Legislature which passed the law had no right to control, and in a case where the creditor had not proceeded to execution against the body of his debtor within the State of New York. Since the adoption of the Constitution of the United States, a State has authority to pass a bankrupt law, provided such law does not impair the obligation of contracts, within the meaning of the Constitution, article 1, section 10, and provided there be no act of Congress in force to establish a uniform system of bankruptcy, conflicting with such law. Crowninshield, on the 22d of March, 1811, made two Statement of case. promissory notes to Sturges, due in the following August. On the 3d of April, 1811, the Legislature of New York, in which State the notes were given, passed " An act for the benefit of insolvent debtors and their creditors." Crowninshield did not pay his notes, but complied with the act referred to, and obtained a discharge. Sturges sued him before the United States Circuit Court for the district of Massachusetts, and the judges being opposed in opinion upon the great questions in the case, it was brought before the 231 21Surges v. Crowninshield. Supreme Court, the opinion of which was delivered on the 17th of February, 1819.1 MARSHALL, Chief Justice. 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? This question depends on the following clause in the eighth section of the first article of the Constitution of the United States: "The Congress shall have power," etc., to "establish a uniform rule of naturalization, and uniform laws on the subject of clause of the Constitution of United States on which thiis case debankruptcies throughout the United pends States." The counsel for the plaintiff contend that the grant of this power to Congress, without Contention of plaintiff. limitation, takes it entirely from the several States. 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice. BUSHROD WASHINGTON, WILLIAM JOHNSON, BROCKHOLST LIVINGSTON, ~ Associate Justices. LfHOMAS TODD. GABRIEL DUVALL, JOSEPH STORY, J Justice Thomas Todd was absent on account of indisposition. Mr. Daggett and Mr. Hopkinson appeared for the plaintiff. Mr. Hunter and Mr. D. B. Ogden appeared for the defendant. Marshall's Constitutional Opinions.23 232 In support of this proposition, they argue that every power given to Congress is necessarily supreme; and if, from its nature, or f rom the words of grant, it is apparently intended to be exclusive, it is as much so as if the States were expressly forbidden to exercise it. These propositions have been enforced and illustrated by many arguments drawn from different parts of the Defendant's conten- Constitution. That the power is both tion. unlimited and supreme is not questioned. That it is exclusive is denied by the counsel for the defendant. In considering, this question it must be recollected Condition prior to the that, previous to the formation of the adoption of the Federal new Constitution, we were divided into Constitution. independent States, united for soine purposes, but in most respects sovereign. These States could exercise almost every legislative power, and among others that of passing bankrupt laws. When the American people created a National Legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the States. These powers proceed not from the people of America, but from the people of the several States; and remain, after the adoption of the Constitution, what they were before, except so far as they may be abridged by that instrument. In some instances, as in making, treaties, we find an express prohibition; and this shows, the sense of the convention to have been that the mere grant of a power to Congress did not imply a prohibition on the States to exercise the same power. But it has never been supposed that this concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited. The con 233 Sturges v. Crowninshield. fusion resulting from such a practice would be endless. The principle laid down by the counsel for the plaintiff, in this respect, is undoubtedly correct. Whenever the terms in which a power is granted to Congress, or the nature of the power, require that it If terms are such that should be exercised exclusively by Con- power is exclusively granted to Congress, gress, the subject is as completely taken subject is taken completely from States from the State Legislatures as if they had been expressly forbidden to act on it.l Is the power to establish uniform laws on the subject of bankruptcies throughout the United Is the subject of bankruptcy such an excluStates of this description? sive power? The peculiar terms of the grant certainly deserve notice. Congress is not authorized merely to pass laws the operation of which shall be uniform, but to establish uniform laws on the subject throughout the United States. This establishment of uniformity is, perhaps, incompatible with State legislation on that part of the subject to which the acts of Congress may extend. But the subject is divisible in its nature into bankrupt and insolvent laws; though the line of partition between them is not so distinctly marked as to enable any person to say, with positive precision, what belongs exclusively to the one, and not to the other class of laws. It is said, for example, that laws which merely liberate the person are insolvent laws, and those which discharge the contract are bankrupt laws. But if an act of Congress should discharge the person of the bankrupt, and leave his future acquisitions liable to his creditors, we should feel 1 Von Holst, Const. Law of U. S., 52, note. See also notes at end of Barron v. Mayor and City of Baltimore in this volume; Benton's "Thirty Years' View," II. 229-240; Webster's Works, V, 8, 10, 11; VI, 25, Mr. Webster's argument iii the case of Ogden v. Saunders. Marshall's Consfitulional Opinions. 234 much hesitation in saying that this was an insolvent, not a bankrupt, act; and therefore unExamples distinguishing insolvent and constitutional. Another distinction has bankrupt laws been stated, and has been uniformly observed. Insolvent laws operate at the instance of an imprisoned debtor, bankrupt laws at the instance of a creditor. But should an act of Congress authorize a commission of bankruptcy to issue on the application of a debtor, a court would scarcely be warranted in saying that the law was unconstitutional, and the commission a nullity. When laws of each description may be passed by the same Legislature, it is unnecessary to draw a precise line between them. The difficulty can arise only in our complex system, where the Legislature of the Union possesses the power of enacting bankrupt laws; and those of the States, the power of enacting insolvent laws. If it be determined that they are not laws of the same character, but are as distinct as bankrupt laws, and laws which regulate the course of descents, a distinct line of separation must be drawn, and the power of each government marked with precision. But all perceive that this line must be in a great degree arbitrary. Although the two systems have existed apart from each other, there is such a connection between them as to render it difficult to say how far they may be blended together. The bankrupt law is said to grow out of the exigencies of commerce, and to be applicable solely to traders; but it is not easy to say who must be excluded from, or may be included within, this description. It is, like every other part of the subject, one on which the Legislature may exercise an extensive discretion. 235 Sturges v. Crowninshield. This dificulty of discriminating with any accuracy between insolvent and bankrupt laws Diffculty of discrimiwould lead to the opinion that a bank-,nating between solvrupt law may contain those regulations laws which are generally found in insolvent laws; and that an insolvent law may contain those which are common to a bankrupt law. If this be correct, it is obvious that much inconvenience would result from that construction of the Constitution which should deny to the State Legislatures the power of acting on this subject, in consequence of the grant to Congress. It may be thought more convenient that much of it should be regulated by State legislation, and Congress may purposely omit to provide for many cases to which their power extends. It does not appear to be a violent construction of the Constitution, and is certainly a convenient one, to consider the power of the States as existing over such cases as the laws of the Union may not reach. But be this as it may, the power granted to Congress may be exercised or declined, as the wisdom of that body shall decide. If, in the opinion of Congress, uniform laws concerning bankruptcies ought not to be established, it does not follow that partial laws may not exist, or that State legislation on the subject must cease. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the States. It is not the right to establish these uniform laws, but their actual establishment, which is inconsistent with the partial acts of the States. It has been said that Congress has exercised this power; and by doing so has extinguished the power of the States, which cannot be revived by repealing the law of Congress. Marshall's Constitutional Opinions. 236 We do not think so. If the right of the States to pass If the right of the a bankrupt law is not taken away by States is not taken away by grant of pow- the mere grant of that power to Coner to Congress, it cannot be extinguished. gress, it cannot be extinguished; it can only be suspended by the enactment of a general bankrupt law. The repeal of that law cannot, it is true, confer the power on the States; but it removes a disability to its exercise which was created by the act of Congress. Without entering farther into the delicate inquiry respecting the precise limitations which the several grants of power to Congress contained in the Constitution may impose on the State Legislatures than is necessary for the decision of the question before the court, it is sufficient to say that, until the power to pass uniform laws on the subject of bankruptcies be exercised by Congress, the States are not forbidden to pass a bankrupt law, provided it contain no principle which violates the tenth section of the first article of the Constitution of the United States.' This opinion renders it totally unnecessary to consider the question whether the law of New York is, or is not, a bankrupt law. We proceed to the great question on which the cause must depend. 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 dis1 In Golden v. Prince, 3 Wash. 313, Judge Washington had previously held in the Circuit Court of the United States for Pennsylvania, that Congress had the exclusive power to pass bankrupt laws; but this opinion was subsequently corrected, and qualified. Kent, Com. (12th ed.), I, 388, note; Id., I, 420. Judge Washington always ad. hered to this view. Kent, Corn., I, 456, note a; II, 390, note c; Story, Com., I, ch. V, ~ 443, note. 237 237 Sturges v. Grow'ninshield. charg~es 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, What is the ohlgation of a contract and what our first inquiry is into the meaning of will impair it? words in common use. What is the obligation of a contract? and what will impair it? It would seem difficult to substitute words which are more intelligible, or less liable to misconstruction, than those which are to be explained. A contract is an agrreement 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 obligation 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 that day; and this is its obligation. Any law which releases a part of this obligation must, in the literal sense of the word, impair it. Much more must a law impair it which makes it totally invalid, and entirely discharges it. The words of the Constitution, then, are express, and incapable of being misunderstood. They admit of no variety of construction, 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. Marshall's Constitutional Opinions. 238 It has been contended that as a contract can only bind Plaintiff contendsthat a man to pay to the full extent of his Plaintiff contends that contract anonlybind property, it is an implied condition a man to pay to full extent ofhis property. that he may be discharged on surrendering the whole of it. But it is not true that the parties have in view only the property in possession when the contract is formed, or that its obligation does not extend to future acquiFuture acquisitionsare sitions. Industry, talents, and integliable for contracts rity constitute a fund which is as confidently trusted as property itself. Future acquisitions are therefore liable for contracts; and to release them from this liability impairs their obligation.' 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 Constitution had intended to deprive them of this power, insolvent laws would have been mentioned in the prohibition; that the prevailing evil of the times, which produced this clause in the Constitution, was the practice of emitting paper money, of making property which was useless to the creditor a discharge of his debt, and of changing the time of payment by authorizing distant instalments. Laws of this description, not insolvent laws, constituted, it is said, the mischief to be remedied; and laws of this description, not insolvent laws, are within the true spirit of the prohibition. 1 Tucker, Const. of U. S., II, 561. See also Ogden v. Saunders, 12 Wheaton, 213, and for a review of the decisions in Sturges v. Crowninshield and Ogden v. Saunders, see case of Boyle v. Zacharie, 6 Pet. 348. 239 239 S/urges v. Crowninshield. The Constitution does not grant to the States the power of passing bankrupt laws, or any other power; but finds them in possession 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 obligation of contracts. Although, then, the StatesWhtheSasmy may, until that power shall be exercised do and the limitations by Congress, pass taws concerning bank- stuo hm rupts, yet they cannot constitutionally introduce into such laws a clause which discharges the obligations the bankrupt has entered into. It is not admitted tVhat, 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 prohibitions. 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 Constitution to prohibit the passage of all insolvent laws, to enumerate particular subjects to which the principle they intended to establish should apply. The principle was the inviolability of contracts. This principle was to be protected in whatsoever form it might be assailed. To what pur- Idem. pose enumerate the particular modes of violation which should be forbidden, when it was intended 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 Marshall's Constitutional Opinions. 240 as they infringe the principle the convention intended to hold sacred, and no farther. But a still more satisfactory answer to this argument is that the convention did not intend to prohibit the passage of all insolvent 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 Distinctionbetweenthe adopted it. The distinction between o^teoo0o ^ o the obligation of a contract and the and the remedy given o gn to enforce it remedy given by the Legislature to enforce that obligation has been taken at the bar, and exists in the nature of things.1 Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the Nation 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 punishment, or may withhold this means, and leave the contract in full force. Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation. No argument can be fairly drawn from the sixty-first section of the act for establishing a uniform system of bankruptcy, which militates against this reasoning. That section declares 1 Kent does not agree with Marshall on this point. Kent, Com. (12th ed.), I, 456, note a. See also s. P., Justice Washington's objection to this dictum in Mason v. Haile, 12 Wheaton, 378. The distinction here adverted to by Marshall is, however, firmly established in the jurisprudence of this country. The Legislature as to pre-existing contracts may modify or alter the remedy, provided such change does not substantially impair the ability of the creditor to enforce performance of the contract. Seibert v. Lewis, 122 U. S. 284. 241 Sturges v. Crowninshield. that the act shall not be construed to repeal or annul the laws of any State then inforce for the relief of insolvent debtors, except so far as may respect persons and cases clearly within its purview; and in such cases it affords its sanction to the relief given by the insolvent laws of the State, if the creditor of the prisoner shall not, within three months, proceed against him as a bankrupt. The insertion of this section indicates an opinion in Congress that insolvent laws might be considered as a branch of the bankrupt system, to be repealed or annulled by an act for establishing that Insolvent laws a branch system, although not within its pur- of the bankrupt system. view. It was for that reason only that a provision against this construction could be necessary. The last member of the section adopts the provisions of the State laws, so far as they apply to cases within the purview of the act. This section certainly attempts no construction of the Constitution, nor does it suppose any provision in the insolvent laws impairing the obligation of contracts. It leaves them to operate, so far as constitutionally they may, unaffected by the act of Congress, except where that act may apply to individual cases. The argument which has been pressed most earnestly at the bar is, that, although all legisla- Points raised at the tive acts, which discharge the obliga- bar by plaintiff. 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 country, and be16 Marshall's Constitutional Opinions. 242 cause 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 dangerous 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 necessary, and a departure from the obvious meaning of words is justifiable. 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 absurdity 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. 243 Siurges v. Crowninshield. The fact is too broadly stated. The insolvent laws of many, indeed of by far the greater Insolvent laws of many States discharge the number, of the States do not contain person of debtor but leave in force his oblithis principle. They discharge the per- gation topay son 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 construction of the section. Every State in the Union, both while a colony and after becoming independent, had been in the practice of issuing paper money; yet this practice is in terms prohibited.1 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 case than in the other. It does not, indeed, extend to insolvent laws by name, because it is not a law by name, but a principle, which is to be forbidden; and this principle is described in as appropriate terms as our language affords. Neither, as we conceive, will any admissible rule of construction 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?2 We are told they were such as grew out of the general 1 See also Thorpe, Const. Hist. of U. S., I, 125-128 and notes. " The power to make anything but gold and silver a tender in payment of debts is withdrawn from the States, on the same principle with that of issuing a paper currency." Madison, Federalist, No. 44. (See note on Trevett v. Weedon, at end of this case.) 2 See MoMaster, Hist. People of U. S., V, 161, 162. Marshall's Constitutional Opinions.24 244 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 evils 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 No State shall emit "6emit bills of credit."3 Neither could bills of credit. 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. I'McMaster, Hist. People of U. S., 111, 416, 417. 2 " The decision of Judge Clark in 1822, [in the famous Kentucky old and new court controversy] that the replevin and stay laws were unconstitutional, had been followed by an attempt to remove him by an address of the Legislature to the Governor. Tihe effort failed, but when, in 1823, the Court of Appeals likewise declared the whole system of relief laws unconstitutional, the Assembly voted that the decision of the court was erroneous, cut down the salary of each of the three judges to twenty-five cents a year, and made the question of removing them a political issue." McMaster, Hist. People of U. S., V, 162; Oration of Jeremiah Smith, Marshall Memorial, L, 144, 145. 3Craig v. State of Missouri, 4 Pet. 411; post, pp. 620-643. 245 245 Sturges v. Crowninshield. Nothing but gold and silver coin can be made a tender in payment of debts. It remains to inquire whether the prohibition under consideration could be intended for the sing-le case of a law directingZ 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 intended to provide, it would undoubtedly have been, like paper money and tenderNoSaesllpsan laws, expressly forbidden. At any rate, law impairing the obI ligation of contracts terms more directly applicable to the subject, more appropriately expressing the intention of the Convention, would have been used. It seems scarcely possible to suppose that the framers of the Constitution, if intending, to prohibit only laws authorizing the payment of debts by instalment, would have expressed that intention by saying, "No State shall pass any law impairing the obligation of 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 particular mischief to which no allusion is made. The fair and, we think, the necessary, construction of the sentence requires that we should giveCosrcin these words their full and obvious meaning'.cosrtin A general dissatisfaction with that lax system of legislation which followed the war of our revolution undoubtedly directed the mind of the convention to this subject. It is probable that laws, such as those* which have been stated in argument, produced the loudest complaints, were most immediately felt. The attention Marshall,'s Constitutional Opinions.24 246 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 Construction of th contract. Had nothing more been incontract-clause tended, nothing more would have been expressed. But, in the opinion of the convention, much more remained to be done. The same mischief might be effected by other means. To restore public confi-. dence completely, it was necessary 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 "1any 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 meaning by understanding them in a more limited sense; those rules of construction, which have been consecrated by the wisdomn of ages, compel us to say that these words prohibit the passage of any law dischargingf a contract without perf ormanc'e. By way of analogyt he statutes of limitations and against usury have been referred to in argument; and it has been supposed that the construction of the Constitution which this opinion maintains would apply to them also, and must therefore be too extensive to be correct. 247 Sturges v. Crowninshield. We do not think so. Statutes of limitations relate to the remedies which are furnished in Statutes of limitations the courts. They rather establish that relate to remedies and aenot in point. certain circumstances shall amount to evidence that a contract 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 already 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 awsagainstusurynot six per centum per annum for the use in point 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 in the whole or in part, it would impair the obligation of the contract, and would be clearly unconstitutional. This opinion is confined to the case actually under consideration. 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 considered. It is the opinion of the court that the act of the State of New York which is pleaded by the defendant in this Marshall's Constitutional Opinions. 248 cause, so far as it attempts to discharge this defendant Act of tate so far as from the debt in the declaration mendischarge defedant tioned, is contrary to the Constitution from the debt is uncon- 9 stitutional of the United States, and that the plea is no bar to the action. NOTE. Kent, commenting on the foregoing case, says: "It remains yet to be settled whether it be lawful for a State to pass an insolvent law, which shall be effectual to discharge the debtor from a debt contracted after the passing of the act and contracted within the State making the law. The general language of the court would seem to reach, even this case; but the facts in these cases decided do not cover this ground, and the cases decided are not authority to that extent."1 The Supreme Court of the United States went a step further in the case of M'Millan v. M'Neill, 4 Wheaton, 209. This was a discharge under the insolvent law of a different government from that in which the contract was made. The facts in this case are as follows: MI'Neill was surety on custom-house bonds given in 1811 by M'Millan, as importer of foreign merchandise. M'Neill paid the bonds on August 23 and September 23, 1813, after suit and judgment. M'Millan, then a resident of Charleston, South Carolina, afterwards removed to New Orleans, and on August 23, 1815, was discharged from all his indebtedness under a bankrupt or insolvent law of the State of Louisiana, passed in 1808. M'Millan also obtained a certificate of discharge under the laws of England. M'Neill does not seem to have appeared in either of the proceedings for M'Millan's discharge, and on July 1, 1817, brought suit against M'Millan to recover the amount paid under the judgments on the customhouse bonds. This cause was argued by Mr. C. J. Ingersoll for M'Millan, the plaintiff in error, no counsel appearing for the defendant in error. Mr. Chief Justice MARSHALL delivered the opinion of the court, stating that this case was not distinguishable in 1 Kent, Cor. (12th ed.), I, 421, 422. 249 Sturges v. Crowninshield principle from the preceding case of Sturges v. Crowninshield. That the circumstances of the State law, under which the debt was attempted to be discharged, having been passed before the debt was contracted, made no difference in the application of the principle, and that as to the certificate under the English bankrupt law, it has frequently been determined, and was well settled, that a discharge under a foreign law was no bar to an action on a contract made in this country. In Farmers & Mechanics' Bank of Pennsylvania v. Smith, 6 Wheaton, 131, it was held that Ax ACT of a State Legislature which discharges a debtor from all liability for debts contracted previous to his discharge, on his surrendering his property for the benefit of his creditors, is a law impairing the obligation of a contract previously made, within the meaning of the Constitution of the United States, so far as it attempts to discharge the contract; and it makes no difference, in such a case, that the suit was brought in the State court of the State, of which both the parties were citizens, where the contract was made and the discharge obtained, and where they continued to reside until the suit was brought. Error to the Supreme Court of the State of Pennsylvania. This was an action of assumpsit, brought by the plaintiffs in error, in the Supreme Court of the Commonwealth of Pennsylvania. The defendant pleaded a discharge under an insolvent law of the State of Pennsylvania, passed after the contract declared on was made. *The plea also averred that the cause of action [*133J arose in the city and county of Philadelphia, from contracts made within the same, and that the plaintiffs and defendants were, at the time the said contracts were made, and at the time the causes of action accrued and at the time the said act passed, citizens of the State of Pennsylvania and still continued to be citizens thereof. To this plea there was a demurrer; and judgment being rendered thereon for the defendant the cause was brought by writ of error to this court. Hopkins, for the plaintiffs. [*134] Sergeant, for the defendant. Marshall's Constitutional Opinions. 250 MARSHALL, Chief Justice, delivered the opinion of the court, that this case was not distinguishable from its former decisions on the same subject,' except by the circumstances that the defendant, in the present case, was a citizen of the same State with the plaintiffs at the time the contract was made in that State and remained such at the time the suit was commenced in its courts. But that these facts made no difference in the cases. The Constitution of the United States was made for the whole people of the Union and is equally binding upon all the courts and all the citizens. Judgment reversed. "It may also be noted that the bankruptcy laws have greatly modified the existing system of enforcing contracts or collecting debts, in the case of persons who fail to meet their engagements, or to pay for want of ability to do so. Those laws are administered under Federal statutes, and not only under an act of Congress, but under the rules of practice prescribed and adopted for the courts of the United States. "As to what is a bankruptcy, see opinion of Judge Catron delivered in the Circuit Court, In re Klein, 1 How. 277. The whole subject was elaborately considered by the Supreme Court of New York in Kunzler v. Kohaus, 5 Hill, 317.", Miller on the Constitution of the United States, 109, 110 and note 1. In the case of Kunzler v. Kohaus the court decided, inter alia, that the voluntary feature of the bankrupt law of 1841, involving a principle hitherto unknown in the bankrupt laws of other countries or of the United States, was unconstitutional because not the bankrupt laws within the contem plation of the Constitution. But this case was overruled by decisions in the Supreme Court of the United States. In Trevett v. Weedon in 1786, in Rhode Island, the judges decided that a law making paper money a tender in payment of debts was unconstitutional and against the principles of Magna (Carta. They were compelled to appear before the Legislature to vindicate themselves; and the next year (being chosen annually) they were left out of office for questioning the legislative power. Story, Coin. on Const. of U. S., I, 469, note; Marshall Memorial, II, 248, 249, 508; Thorpe, Const. Hist. of U. S., I, 268-270. 1 Sturges v. Crowninshield, 4 Wheaton, 122-208. 251 Sturges v. Crowninshield. REFERENCES TO STURGES v. CROWNINSHIELD, IN MARSHALL MEMORIAL VOL. L Justice Horace Gray, pp. 70, 93; Prof. James Bradley Thayer, p. 234; Judge Le Baron Colt, p. 304; Judge James T. Mitchell, p. 484; Hon. John Bassett Moore, p. 518. VOL IL Hon. H. Warner Hill, p. 112; Hampton L. Carson, Esq., p. 261; Hon. William A. Ketcham, p. 294; Hon. Henry Cabot Lodge, p. 329; Hon. Henry Hitchcock, p. 515. VOL IIL Hon. Bartlett Tripp, p. 157; Judge J. A. Cooper, p. 190; Judge Cornelius H. Hanford, p. 250; Hon. Edward J. Phelps, pp. 388, 389. NATIONAL AND STATE SOVEREiGNTY -CONGRESS HAS THE CONSTITUTIONAL POWER TO CHARTER A BANK AS A FISCAL AGENCY OF THE GENERAL. GOVERNMENT - THE STATES HAVE NO POWER TO TAX ITS OPERATIONS OR FRANCHISES WITHOUT THE CONSENT OF CONGRESS. At the February term, 1819, the Supreme Court decided three causes confessedly among the greatest and most important in its history,- the bankruptcy case of Sturges v. Crowninshield, above given, The Maryland Bank case, and the Dartmouth College case, both of which immediately follow. In the Maryland Bank case the validity of the act of Congress of 1816 incorporating the United States Bank, and the validity of an act of the Maryland Legislature of 1818 imposing a stamp tax on notes issued by the branch Bank of the United States in Maryland, were involved. Counsel the most eminent in the country were concerned in the case; the arguments occupied more than a week. Webster opened, Hopkinson followed, then Wirt, Jones and Martin in the order named. Mr. Pinkney made the closing reply, which occupied three days in delivery. The word "1Bank " or "1Incorporation " is not found in the Federal Constitution, but the power of Congress to incorporate the bank was deduced by the court from the express powers to lay and collect taxes, etc., and from the clause conferring on Congress authority to make all laws necessary and proper to carry into effect the powers expressly granted. It was accordingly held by the Su 253 3 M'Culloch v. State of Maryland and Others. preme Court that Congress had power to charter a bank as an agency of the General Government; and it was also held that the act of the State taxing the operations of the bank without the consent of Congress was in conflict with the Constitution and laws of the United States and was, therefore, void. But the court admitted that the States might tax the "property " of the bank as distinguished from its " operations" and "franchises." The principles of this decision in both of its parts are among the settled and no longer questioned doctrines of American constitutional law. The reports of the Supreme Court since 1819 show that scores of cases have arisen in regard to the power of the States to tax or otherwise burden or retard the agencies, instrumentalities, powers or operations of the General Government, and these cases have all been professedly decided on the doctrines laid down in the Maryland Bank case. The latest decision on the subject is in the case of the Atlantic and Pacific Telegraph Company v. The City of Philadelphia, October term, 1902 (190 U. S. 160). Mr. Justice Brewer's summary of the decisions of the court will be found in the foot-note.' 1 Few questions are more important or have been more embarrassing than those arising from the efforts of a State or its municipalities to increase their revenues by exactions from corporations engaged in carrying on interstate commerce. There have been many cases in whose decision some propositions have been adjudicated so often as to be no longer open to discussion. First. As said by Mr. Justice Bradley, speaking for the court, in Robbins v. Shelby Taxing District, 120 U. S. 489, 492: "The Constitution of the United States having given to Congress the power to regulate commerce, not only with foreign nations, but among the several States, that power is necessarily exclusive whenever the subjects of it are national in their character, or admit only of one uniform system, or plan of regulation." Marshall's Constitutional Opinions. 254 In the present case occurs Marshall's famous dictum: "That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create." It was in this case also that Mr. Pinkney in the ornate In addition to the many cases referred to by him the following subsequent decisions may also be cited: Fargo v. Michigan, 121 U. S. 230, 246; Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, 336, 346; Western Union Telegraph Co. v. Pendleton, 122 U. S. 347, 357; Bowman v. Chicago, etc. Ry. Co., 125 U. S. 465, 497; Leloup v. Port of Mobile, 127 U. S. 640, 648; Asher v. Texas, 128 U. S. 129, 131; Stoutenburgh v. Hennick, 129 U. S. 141, 148; Leisy v. Hardin, 135 U. S. 100, 110; Lyng v. Michigan, 135 U. S. 161; McCall v. California, 136 U. S. 104, 109; In re Rahrer, 140 U. S. 545, 555; Crutcher v. Kentucky, 141 U. S. 47, 58; Brennan v. Titusville, 153 U. S. 289, 304; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 471; United States v. Knight Co., 156 U. S. 1, 21; Schollenberger v. Pennsylvania, 171 U. S. 1; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211; Stdckard v Morgan, 185 U. S. 27. Second. No State can compel a party, individual or corporation to pay for the privilege of engaging in interstate commerce. Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 211; Pickard v. Pullman Car Co., 117 U. S. 34; Robbins v. Shelby Taxing District, 120 U. S. 489; Fargo v. Michigan, 121 U. S. 230, 245; Philadelphia Steamship Co. v. Pennsylvania, 122 U. S. 326, 336; Leloup v. Port of Mobile, 127 U. S. 640, 645; Asher v. Texas, 128 U. S. 129; Lyng v. Michigan, 135 U. S. 161, 166; McCall v. California, 136 U. S. 104, 115; Crutcher v. Kentucky, 141 U. S. 47, 58; Adams Express Co. v. Ohio, 165 U. S. 194, 220. Third. This immunity does not prevent a State from imposing ordinary property taxes upon property having a situs within its territory and employed in interstate commerce. State Tax on Railway Gross Receipts, 15 Wall. 284, 293; The Delaware Railroad Tax, 18 Wall. 206, 232; Telegraph Co. v. Texas, 105 U. S. 460, 464; Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 211; Western Union Tel. Co. v. Massachusetts, 125 U. S. 530; Marye v. Baltimore & Ohio Railroad, 127 U. S. 117, 123; Leloup v. Port of Mobile, 127 U. S. 640, 649; Pullman Car Co. v. Pennsylvania, 141 U. S. 18; Massachusetts v. Western Union Tel. Co., 141 U. S. 40; Pittsburg, etc. Ry. Co. v. 255 M'Cuiloch v. State of Maryland and Others. style of the period referred to the Supreme Court as "4more than Amphictyonic council," declaring that he saw in the power of the court under the Constitution to decide the conflicting sovereign claims of the Nation and the States, "1a pledge of the immortality of the Uuion, of a perpetuity of national strength and glory, increasing and brighte.-ning with age, - of concord at home and reputation abroad."1 Backus, 154 U. S. 421; Western Union Tel. Co. v. Taggart, 163 U. S. 1; Adams Express Co. v. Ohio, 165' U. S. 194, 220. Fourth. The franchise of a corporation, although that franchise is the business of interstate commerce, is, as a part of its property, subject to State taxation, providing at least the franchise is not derived from the United States. Delaware Railroad Tax, 18 Wall. 206, 232; Postal Tel. Cable Co. v. Adams, 155 U. S. 688, 696; Erie Railroad v. Pennsylvania, 158 U. 5. 431, 437; Central Pacific Railroad v. California, 162 U. 5. 91; Western Union Tel. Co. v. Taggart, 163 U. 5. 1, 18; Western Union Tel. Co. v. Missouri ex rel. Gottlieb., post,. 163. Fifth. No corporation, even though engaged in interstate commerce, can appropl iate to its own use property, public or private, without lialbility to charge therefor. Packet Co. v. St. Louis, 100 U. 5. 423; Packet Co. v. Catlettsburg, 105 U. 5. 559; Transportation Co. v. Parkersburg, 107 U. 5. 691; Huse v. Glover, 119 U. 5. 543; Ouachita Packet Co. v. Aiken, 121 U. 5. 444; St. Louis v. Western Union Tel. Co., 148 U. 5. 92; St. Louis v. Western Union Tel. Co., 149 U. 5. 465; Postal Tel. Cable Co. v. Baltimore, 156 U. 5. 210; Richmond v. Southern Bell Tel. Co., 174 U. 5. 761, 771. 1 Wheaton, Life, etc. of William Pinkney, p. 163. It was of this argument that Justice Story contemporaneously wrote March 3, 1819, to his brother-in-law, Mr. White - "1For more than a week past we have been engaged in the cause of Maryland v. The Bank of the United States. Mr. Pinkney rose on Monday to conclude the argument; he spoke all that day and yesterday, and will probably conclude to-day. I never in my whole life heard a greater speech; it was worth a journey from Salem to hear it; his elocution was excessively vehement, but his eloquence was overwvhelming. His language, his style, his figures, his arguments, were Marshall's Constitutional Opinions. 256 The opinion of the Chief Justice in the Bank Case is one of his most lofty and massive productions. Professor Thayer, indeed, regards it as probably Marshall's " greatest opinion." 1 Chancellor Kent's high estimate may be seen in the note below. The numerous references on Marshall day to the opinmost brilliant and sparkling. He spoke like a great statesman and patriot, and a sound constitutional lawyer. All the cobwebs of sophistry and metaphysics about State rights and State sovereignty he brushed away with a mighty besom. I fear that this speech will never be before the public; but if it should be it will attract universal admiration. Mr. Pinkney possesses, beyond any man I ever saw, the power of elegant and illustrative amplification." Story's Life and Letters, by his son, William W. Story, I, 324. Story's letters abound with interesting details concerning Pink. ney. Id., I, pp. 214-217, 251, 256, 278, 280, 415, 566; II, Lecture on Pinkney, pp 490-495. Chief Justice Marshall says he "never knew Pinkney's equal as a reasoner." Id., p. 494. Story adds, "But Judge Marshall then forgot himself." Mr. Hampton L. Carson collated from contemporary and authentic sources " Pen Sketches of William Pinkney as he appeared to his contemporaries," which he communicated to The Legal Intelligencer, February 8, 1895,- a most interesting production. Justice Story's apprehension that Pinkney's speech would not be preserved was in part realized. But Mr. Wheaton, the reporter, took notes at the time; Mr. Pinkney afterwards supplied him with his own, and the substance of his argument so far as it exists appears in Wheaton's Life of Pinkney, pp. 161-166, 550-573 (Appendix VI). Fortunately this is sufficiently complete to exhibit somewhat adequately Mr. Pinkney's style and powers. Mr. Webster's argument in the case does not appear in his collected works published by Little and Brown, 1851. "Of the speeches of Mr. Webster, who opened the cause, and of Mr. Wirt, who followed Mr. Hopkinson, we have but mere sketches, intended only to present the points to which their arguments were directed, with such brief illustration as is usually to be found in a report for the use of the profession." Kennedy's Wirt, II, 82. 1 Marshall Memorial, I, 234. 257 257 M'Cuiloch v. State of Maryland and Others. ion of the Chief Justice, below given in full, show the consensus of professional judgment concerning its soundness and the greatness of its display of intellectual and logical force and close, severe and luminous reasoning. lVJ.'ulloch v. The State of Maryland and Others. February Term, 1819. [4 Wheaton's Reports, 316-437.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The act incorporating- the Bank of the United States is a law made in pursuance of the Constitution. A State law imposing a tax on the operations of the Bank of the United States is unconstitutional. The power to establish a branch of the Bank of the United States in the State of Maryland might properly be exercised by the bank itself. In April, 1816, the Congress of the United States incorporated the Bank of the United States. In 1817 a branch of this bank was located at Baltimore, Maryland. In 1818 the Legislature of Maryland passed a law to tax "all banks or branches thereof, in the State of Maryland, not chartered by the Legislature."'I The branch of the United States Bank did not pay this tax, and M'Culloch, the cashier, was sued by John James, for himself and the 1 This tax, it is important to bear in mind, was not upon the property of the bank, but took the form of requiring the notes of the bank to be upon stamped paper furnished by the State, the amount of the stamp being measured by the denomination of the bank notes. The proceeds of the stamp tax went into the treasury of the State. 17 Marshall's Constitutional Opinions. 258 State of Maryland, according to the provisions of the act imposing the tax. Judgment being given in the State courts against M'Culloch, he brought it before the Supreme Court,' the opinion of which was delivered on the Tth of March, 1819. MARSHALL, Chief Justice. In the case now to be determined, the defendant, a sovereign State, denies Opinion the obligation of a law enacted by the Legislature of the Union, and the plaintiff, 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 government of the Union and of its members, as marked in that Constitution, 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 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice. BUSHROD WASHINGTON, WILLIAM JOHNSON, BROCKHOLST LIVINGSTON, Associate Justice& THOMAS TODD, { GABRIEL DUVALL, JOSEPH STORY, Mr. Justice Todd was absent on account of indisposition. Mr. Daniel Webster, Mr. William Pinkney and Attorney-General William Wirt appeared for plaintiff in error. Mr. Joseph Hopkinson, Mr. Walter Jones and Mr. Luther Martin, Attorney-General of Maryland, appeared for defendants in eiror. 259 29M'Cuiloclz v. S/ate of Maryland and Others. so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the Constitution of our country devolved this important duty. 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- Has Congress power to incorporate a bank? 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 suspended, in the decision of whicinh 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 receive a considerable impression from, that practice. An exposition of the Constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded. The power now contested was exercised by the first Congress elected under the present History of the bill Consituion Thebil fo incrpoat-for incorporating the Consituion Thebil fo incrpoat-Bank of the United ing the Bank of the United States did States not steal upon an unsuspecting Legislature, and pass un Marshall's Cons/il utional Opinions.26 260 observed. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much perse.vering, talent as any measure has ever experienced, and being supported by arguments which convinced minds as pure and as intelligent as this country can boast, it became a law. The original act was permitted 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 necessity, 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; bnt 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 Counsel for Maryland Maryland have deemed it of some imclaim Constitution did nortance in the construction of the not emanate from the P people but as the actCotcnsdrhaisrof sovereign and inde- Cnstitution,tocniethtnsr pendent States. ment 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 possess supreme dominion. Difficult to sustain this It would be difficult to sustain this proposition. proposition. The convention which framed the Constitution was indeed elected by the Stat e 261 M'Culloch v. State of Maryland and Others. 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 convention 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; The people acted upon and by the convention, by Congress, the Constitution by y assembling in convenand by the State Legislatures, the in- t'on. strument 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 measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is "ordained and established " in the name of the people; and is declared to be ordained "in order to form a more perfect Union, establish justice, insure domestic tranquillity, and secure the blessings 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 required not the Marshall's Constitutional Opinions. 262 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 deleg~ated to the State sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty 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 f rom them, was felt and acknowledged by all. The government of the Union, then (whatever may be the influence of this fact on the case), The government of the Union is a government IS emphatically and truly a governof he eope. 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. That the government This government is acknowledged by can exercise only those na powers granted to it is all to be one of enumerated powers. now universally adinitted; the extent of The principle, that it can exercise only those powers will al-V ways he a question the powers granted to it, would seem too apparent to have required to be enforced by all 263 263 Mr'Culloch v. Stale of Maryland and Others. those argruments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question, respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise as ]ong as our system shall exist. In discussing these questions, the conflicting powers of the General 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, we might expect it would be thisthat the government 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 delegated by al]; 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, "11This Constitution, and the laws of the United States which shall be made in pursuance thereof," "4shall be the supreme law of the land," and by requiring that the members of the State Legislatures, and the officers of the executive 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 Government of the United States is sulaws, when made in pursuance of the preme Constitution, form the supreme law of the land, "1any Marshall's Constitutional Opinions.26 264 thing in the Constitution or laws of any State to the contrary notwithstanding." Among, the enumerated powers we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the Articles of Confederation, excludes incidental or implied powers, and which requires that everything granted shall be expressly and minutely described. Even the Tenth Amendment, which was framed for the purpose of quieting, the excessive jealousies which had been excited, omits the word "itexpressly," and declares only that the powers "1not delegated to the United States, nor prohibited to the States, are reserved 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 instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the Articles of Confederation, and probably omitted it to avoid those embarrassments. A silefo Cnsi-Constitution, to contain an accurate detuinto enumerate in tail of all the subdivisions of which its detail its powers; only ado l h isgetoutlines great powers will ad mit, ado l h holbe marked. 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 requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. That this idea was entertained by the framers of 265 265 M'Cuilocli v. State of Maryland and Others. the American Constitution is not only to be inferred from the nature of the -instrument, but from the language. Why else were some of That this was the inýn zntention of the framers the limitations, found in the ninth sec- of the Constitution is I proved by the ninth tion of the first article, introduced?~ section of article 1 It is also in some degree warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, 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 word "bank"~ or "incorporation," we find the great powers to lay and collect taxes, to borrow money, to regulate commerce, to declare and conduct a war, and to raise and support 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 pretended 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 Reasonable to suppose that a government intrusted with such that government with such ample powers apepowers, o the due execution of must be intrusted ample onwith means for their which the happiness and prosperity of executioni. the Nation so vitally depend, must also be intrusted with ample means for their execution. The power beinggiven, 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 Marshall's Constitutional Opinions. 266 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 reversed. Is that construction of the Constitution to be preferred which would render these operations difficult, hazardous, and expensive? Can we adopt that construction (unless the words imperiously 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 have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; 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 employed. It is not denied that the powers given to the government imply the ordinary means of execution. That, for It s onendd y heexample, of raising revenue and applycounsel for defendant ing it to National purposes, is admitted that powers given to 0 the government iml to imply the power o conveyingmoe ordinary means of ex- o oe ecution, but the gv lc lc, eiece ermient has nao=coc fromplc to pae as the eiece of mans.of the Nation may require, and of employing the usual means of conveyance. But it ig denied that the government has its choice of mea.' s, or that it may employ the most convenient means, if to employ them it be necessary to erect a corporation. On what foundation does this argument rest? On this alone: The power of creating a corporation is one apper 267 M'Culloch v. State of Maryland and Others. taining to sovereignty, 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 Congress to pass other laws for the accomplishment of the same objects. The government which has a right to do an act, and has imposed on it the duty of perIf the government has forming that act, must, according to the right to do an act it has also the power the dictates of reason, be allowed to to select the means of doing it. 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 sovereignty. 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 government of the Union and those of the States. They are each sovereign with respect to the objects committed to it, and neither 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 Marshall's Constitutional Opinions. 268 States. We cannot believe that their relation to each other is in any degree dependent upon this circumstance. Their respective 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 residuum of power, would it have been asserted that the government of the Union was not sovereign with respect tb those objects which were intrusted to it, in relation to which its laws were declared to be supreme? If this could not have been asserted, we cannot well comprehend the process of reasoning which maintains that a power appertaining to sovereignty cannot be connected 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 corporation, though appertaining to sovereignty, is not like the power of making corporation distin- war, or levying taxes, or of regulating guished from the power of levying war, commerce, a great substantive and inetc. dependent power, which cannot be implied 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 the means by which their objects are accomplished.' No contributions 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 corporate character is conferred to subserve the purposes of education. No city was ever built with the sole object of being incorporated, but is incorporated as afford1 Tucker on Const. of U. S., I, 369. 269 29 M'Culloch v. State of Maryland and Others. ing the best means of being well governed. The power of creating a corporation is never used for its own sake, but for the purpose 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 "Necessary and shall be necessary and proper for carry- proper," clause ing into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department thereof." The counsel for the State of Maryland have urged various arguments to prove that this clause, though in terms a grant of power, is not so in effect; but is really restrictive of the general right, which might otherwise be implied, of selecting means for executing the enumerated powers. In support of this proposition, they have found it necessary to contend that this clause was inserted for the purpose of conferring 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. 1 Tucker on Const. of U. S., 1, 367, 368: Cooley Const. Lim. 63; Story, Const., I, oh. V, 430 and note 2, 431; III, ch. XXV, ~ 1257; Federalist, Nos. XXXIII, XLIV; Thorpe, Const. of U. S., I, 525; Miller, Const. of U. S., 143, 144; Hepburn v. Griswold, 8 Wall. 603, 614, 615; Legal Tender Cases, 12 Wall. 457; Slaughter House Cases, 16 Wall. 36. Marshall's Constitutional Opinions.27 270 - But could this be the object for which it was inserted? Agovernment is created by the people, having legislative, executive, and judicial powers. Its legislative powers are vested in a Congress, which is to consist of a Senate and House of Representatives. Each Discussion of this House may determine the rule of its clause 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 seventh section describes the course of proceedings by which a bill shall become a law; and then the eighth section enumerates the powers of Congrress. 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 empowered by it to make all laws which may have relation to the powers conferred on the government, but such only as may be "necessary and proper" for carrying them into execution. The word 11nece~sary" is considered as controlling the whole sentence, and as limiting the right to pass laws, for the execution Idem. 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 Con 271 21M'Cuiloch v. State of Maryland and Others. gress, in each case, that only which is most direct and simple. Is it true that this is the sense in which the word "1necessary is always used? Does it always import an absolute, physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use in the common affairs of the Idem. world, or in approved authors, we find that it fre-' quently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end is generally understood as employing any means calculated 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 situations, one single definite idea; and nothing is more com mon than to use words in a figurative sense. Almost all compositions contain words which, taken in their riglorous 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 "1necessary'" 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 other words which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. 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 Marshall's Constiltutional Opinions. 272 bar from the tenth section of the first article of the Constitution. It is, we think, impossible to compare the sentence, which prohibits a State from laying "1imposts, or duties on imports or exports, except what may be abs5olutldy necessary for executing its inspection laws," with that which authorizes Congrress "1to make all laws which shall be necessary and proper for carrying into execution " the powers of the General Government, without f eelingo a conviction that the convention understood itself to change materially the meaning of the word "1necessary," by prefixing the word "absolutely." This word, then, like others, is used in various senses; and in its construction, the subject, 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 could not be done by confining the choice of means to such narrow limits as not to leave it in the power of Congress to adopt any which mig~ht be appr'opriate and which were conducive to the end. This provision 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 government should in all future time execute its powers would have been to change entirely the character of the instrument, and give it the properties of a legal code. It would have been an unwise 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 273 M'Culloch v. State of Maryland and Others. 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 Legislature of the capacity to avail itself of experience to exercise its reason, and to accommodate 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 compelled 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 imposed and collected, armies and navies may be raised and maintained, and money may be borrowed, without requiring an oath of office. It might be argued, with as much plausibility as other incidental powers have been assailed, that the convention 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 Whence arises the punish in cases not prescribed by the power to punish under the penal code in cases Constitution? All admit that thegov- not prescribed by the Constitution? eminent may legitimately punish any violation of its laws; and yet this is not among the enumerated powers of Congress. The right to enforce the 18 Marshall's Constitutional Opinions.27 274 observance of law, by punishing its infraction, migrht bel denied with the more plausibility, because it is expressly given in some cases. Congress is empowered "1to providle for the punishment of counterfeiting the securities and current coin of the United St *ates," and "to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations." The several 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 Powr toestblshand post-roads."' This power is exepost-offices and post- cuted by the single act of making the roads."I establishment. But from this has been inferred the power and duty of carrying the mail alongr 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 exercise 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 ýall the operations of the government, and the absolute 21175 M'Culloch v. Stafe of Maryland and Others. impracticability of maintaining it without rendering the government incompetent to its great ob- Narrow construction jects, might be illustrated by numerous has a baneful influence. 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 indispensably necessary. It is a right incidental to the power, and conducive to its beneficial exercise. If this limited construction of the word "1 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 "4 needful," " requisite," "' essential," Construction of word "i conducive to," in order to let in the "necessary. " power of punishment for the infraction 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 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 "necessary " was used in that strict and rigorous sense for which the counsel for the State of Maryland contend, it would be an extraordinary departure from the usual Mlarshall's Constitutional Opinions.27 276 course of the human mind, as exhibite.-,d in composition, to add a word, the only possible effect of which is to qualify that strict and rigorous meaning; to present 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 tine and argument in proving that, without it, Congress might carry its powers into execution, would be no~t much less idle than to hold a lighted taper to the sun. As little can it be required to prove, that, in the absence of this clause, Congress would have some choice of means; that it might employ those which in its judgment would most advantageously effect the oh-. ject 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 Reasons why the con- themselves constitutional. This clause, struction of the clause as construed by the State of Maryland, by State of Marylandy is wrong. 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: 1st. The clause is placed among the powers of Congress, not among the limitations on those powers. 2d. 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 277 7 M'Culloch v. Slate of Maryland and Others. 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, impress on the mind another, they would rather have disguised the grant of power than its limitation. If, then, their intention had been by this clause to restrain the free use of means which might otherwise have been implied, that intention would have been inserted in another place, and would have been expressed in terms resembling these: "In carrying into execution the foregoing powers, and all others," etc., "1 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 bestowed 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 selection 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 remove all doubts respecting the right to legislate on that vast mass of incidental 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 government are limited, and that its limits are not to be transcended. But we think the sound construction of the Marshall's Constitutional Opinions.27 278 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 Well-known canon of end be legitimate, let it be within the Marshall here given 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.1 That a corporation must be considered as a means not less usual, not of higher dignity, not more requiring a particular specification, than other means, has been sufficiently proved. If we look to the origin of corporations, to the manner in which they have been framed in that government from which we have derived 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 all the means for carrying into execution the great powers vested in government, 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. IBut being considered merely as a means, to be employed only for the purpose 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 1 Tucker, Const. of U. S., 1, 361, 367; Legal Tender Cases, 12 Wall. 457; Slau gh ter- House Cases, 16 Wall. 36; Thorpe, Const. of U. S., 11, 487; Miller, Const. of U. S., 143, 144, 231, note. 279 M'Culloch v. State of Maryland and Others. construction which has been uniformly put on the third section of the fourth 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 executing the powers of government. That it is a convenient, a useful, and essential instrument 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 previous opinions against it had been confirmed by every circumstance 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, perhaps, its powers, to obtain the advantage of a bank; and our own legislation attests the universal conviction of the utility of this 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 government. Marshall's Constilutional Opinions.,8 280 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 are prohibited by the Constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment 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 really calculated to effect any of the objects intrusted to the government, to undertake 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. After this declaration it can scarcely be necessary to say that the existence of State banks can have no possible influence on the question. No trace is to be found in the Constitution of an intention to 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 necessity of resortingr to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments which might disappoint its most important designs, and is incompatible with the language of the Constitution. But were it otherwise, the choice of means implies a right to 281 281M'Culloch v. State of Mariland and Ohers. choose a National bank in preference to State banks, and Congress alone can make the election. After the most deliberate consideration, it is the unanimous and decided opinion of this court Act to incorporate the that the act to incorporate the Bank of Bank of United States is constitutional the United States is a law made in pursuance of the Constitution, and is a part of the supreme law of the land. The branches, proceeding from the same stock, and being' conducive 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 are 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 right 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? That the power of taxation is one of vital importance; that it is retained by the States; that it The act incorporating is not abridged by the grant of a simi- the bank being constitutional, can the State lar power to the government of the of Maryland tax that branch of the bank? Union; that it is to be concurrently exercised by the two governments: are truths which have Marshall's Constitutional Opinions. 282 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 executi~ng their inspection laws. If the obligation of this prohibition must be conceded,- if it may restrain a State from the exercise of its taxing power on imports and exports, the same paramount character would seem to restrain, as 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 absolutel~y repugnant to another as entirely repeals that other as if express terms of repeal were used. On this ground the counsel for the bank 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 sustained on a principle which so entirely pervades the Constitution, is so intermixed with the materials which compose it, so interwoven 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 Constitution 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 corollari-es, on the truth or error of which, and on their application to this case, the cause has been supposed to depend. These are, 1st. That a power to create implies a power to preserve. 2d. That a power to destroy, if wielded by a different hand, is hostile to and incomn 283 23M'Guiloclz v. State of Maryland and Others. patible with these powers to create and to preserve. 3d. That, where this repugnancy exists, that authority which is suipreme must control, not yield to that over which it is supreme. These propositions, as abstract truths, would, perhaps, never be controverted. 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 bank, 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 States might tax bank to be denied.' But taxation is said to out of existence be an absolute power, which acknowledges no other limits than those 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 to and may be controlled by the Constitution of the 1 Tucker, Const. of U. S., 1, 494, says: "A striking instance of the truth of the proposition is seen in the f act 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." Miller also says: "it was a terse statement of a great truth which was made by Chief Justice Marshall in the great case, in regard to the United States Bank, that the power to tax, where unlimited, was the power to destroy. This may at first appear to have been a rather strong stateme,,nt, but it was not." Const. of U. S. 256. Marshall's Conslitulional Opinions.28 284 United States. How far it has been controlled by that instrument must be a question of construction. In mak-%ing- this construction no principle not declared can be admissible which would defeat 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 subordinate governments as to exempt its own operations from their 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 i1S, Contention by the State not that the States may directly resist of Maryland. a law of Congress, but that they may exercise their acknowledged powers upon it, and that the Constitution leaves thenm 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 acknowledg~ed 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 legitimately exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax the Legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. 285 M'Culloch v. State of Maryland and Others. 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 representative, 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 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 principles, exempt from taxation. This proposition may almost be pronounced 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 Marshall's Constitutional Opinions.28 286 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. Tf 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 standard, applicable to every case 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 execution. 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 between a right in one government to pull down what there is an acknowledged right in another to build up, from the incompatibility 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 taxation is the legitimate use, and what degree may amount to the abuse of the power? The attempt to use it on the means employed by the government 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. 287 287 M'Guiloch v. State of Maryland and Others. 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 inquiry, whether this powver 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 the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one government 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 magric of the word CONFIDENCE. Taxation, it is said, does not necessarily and 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 Marshall's Cons/it utional Opinions.28 288 controlling measures wvhich 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 What would result if Maryland contends to the Constitution the principle contended for by State of generally, we shall find it capable of Maryland had effect, 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 transfer the supremacy, in fact, to the States. If the States may tax one instrument employed by the government 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; they 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 government dependent on the States. Gentlemen say they do not claim the right to extend State taxation to these objects. They limit their pretensions to property. 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. 1 "1It follows as a logical result from this doctrine that if the Congress of the Union may constitutionally create a Bank of the United States as an agency of the National Government in the accomplishment of its constitutional purposes, any power of the States to tax such hank, or its property, or the means Of performing its functions, is precluded by necessary implication." Cooley, Const. Lim., p. 482. 289 289 M-'Guioch v. Slate of Maryland and Others. They contend that the power of taxation has no other limit than is found in the tenth section of the first article of the Constitution; that with respect to everything else the power of the States is supreme, and admits of no control. If this he 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 acknow ledged; 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 pursuance 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 cases which may arise in the progress of our government a right to judge of their correctness must be retained, and to understand the argument 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 19 Marshall's Constitutional Opinions. 290 power, which the argument seeks to remove, is stated with fullness and clearness. It is, "that an indefinite 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 become 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. It might allege a necessity for doing this in order to give efficacy to the National revenues, and thus all the resources of taxation 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 undefined 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 incapable of executing any of its powers, without exposing the means it employed to the embarrassments of State taxation. Arguments urged against these objections and these apprehensions are to be understood as relating to the points they mean to prove. Had 1Nos. XXX-XXXIIL 291 21M'Cuiloclz v. State of Maryland and 0thers. 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 neg-ative. It has also been insisted, that, as the power of taxation in the General and State governments is acknowledged to be concurrent, 4/ t every argrument, which would sustain the rigrht of the General Government 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 conferred 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 constituents; 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 measures 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, and those of a government which, when in opposition to those laws, is not supreme. Marshall's Constitutional Opinions.29 292 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 consideration. 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 consequence of that supremacy which the Constitution has declared. We are unanimously of opinion that the law passed by Law imposing a tax onth LegislatureoMayndipsg bank unconstitutional. 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. NOTE. "In further illustration of the permanent value and effect of Marshall's constitutional decisions I shall next refer to what was at the time known as the Bank case 293 M'Culloch v. State of Maryland and Others. (reported under the name of M'Culloch against?iaryland, decided in 1819). It presented questions underlying the very existence of the government of the Union. Its decision not only determined the conflicting claims of the General and the State governments on points of great moment, but also laid down the true principles of construction by which the respective limits of their powers are ascertained, and it is, moreover, among the most striking examples of the wisdom of the framers of the Constitution in constituting the Supreme Court of the United States the tribunal to determine finally and peacefully competing pretensions of the States and the General Government. The case was, in fact, a controversy between the United States and the State of Maryland, and involved, on the one hand, the constitutionality of an act of Congress, and on the other, the constitutionality of a revenue statute of the State. "The war of 1812 was followed by a period of great financial distress, during which Congress rechartered, in 1816, the Bank of the United States as a fiscal agency of the government. The act was approved by President Madison. The Constitution contains no express power to charter a bank or to create any corporation, and under the principle of strict construction (that no power exists unless expressly granted), the act would be unconstitutional, and such was the contention of the State of Maryland. Branches of the principal bank were established in several States, among others, in 1817, in Maryland, and had power to issue notes to circulate as money. The Legislature of Maryland, the next year, enacted a statute taxing all banks or branches thereof located in that State not chartered by its Legislature by requiring that notes issued by them should be upon stamped paper of the State. This legislation was aimed at the branch bank and was probably intended to tax it out of existence in the State of Maryland. The government claimed that this act, if applied to the branch bank in Maryland, was repugnant to the Constitution of the United States, and was, therefore, void. The branch bank ihaving refused to pay the tax, an action was brought to recover the amount thereof against Mr. M'Culloch, its cashier; and this was the case which was finally presented for the decision of the Supreme Court of the United States, to which it was carried Marshall's Constitutional Opinions.29 294 from the judgment of the Supreme Court of Maryland in favor of the State and ao~ainst the bank. "The momentous questions which lay at the foot of this controversy were fully appreciated at the time. The case attracted universal attention. Appreciating that the fundamental principles of the government were at stake, the opinion of the Chief Justice is one of the ablest and most elaborately reasoned which he ever pronounced. Concerning- the bank, the court held that it had been chartered by Congyress as an instrumentality to carry on the financial operations of the government, and that although the power to create a bank for such purpose was not expressly found in the Constitution, yet it was implied in the great powers to levy and collect ta *xes, to borrow money, to regulate commerce, to declare and conduct a war, and to raise and support a 'rmies; and that these powers being given, Congress had the right to select or create any appropriate means to facilitate the execution thereof. "The tests by which to determine the extent of the implied powers of the General Government as laid down in this opinion are not now questioned or denied. After this decision the question as to creating a national bank became one wholly of legislative policy. As we know, a bill for that purpose, passed by Congress in 1836, was vetoed by President Jackson partly on the ground that it was unconstitutional. This presented, of course, no question for judicial review. Many years afterwards, however (1863), the existing system of national banks was created by Congress, to the great benefit of the country, and at this day no one I think seriously doubts the power of Congress to enact legislation of this character. "11The other question in the case as to the power of the State to tax the bank is in its principles equally imnportant. The claim of the State was more than plausible; it was one not a little difficult to answer. The State said, in effect: ' We are sovereign. Taxation of all persons and property within our limits belongs to sovereignty; and there beingr no prohibition in the Federal Constitution against the exercise of this vital power on the part of the State, it remains in all its amplitude uncurtailed in the several States.' 295 M'Culloch v. State of Maryland and Others. " But Marshall held that this claim on the part of the State was fully answered by the principle already announced, namely, that the bank was rightfully established as a fiscal agency of the General Government, and that this excluded, by necessary implication, the right of the State to levy a tax against its operations without the consent of Congress, since unlimited power to tax involved the power to destroy. 'If,' said Marshall, 'the States may tax one instrument employed by the General Government in the execution of its powers, they may tax any and every other instrument which would defeat the ends of the General Government. This was not intended by the American people. They did not design to make their government dependent on the States.' 1" This principle has since been applied to many subjects other than taxation; and a long line of adjudications in the Supreme Court has resulted in the establishment of the general doctrine so essential to the maintenance of the government - that the States cannot in any manner control the General Government in its legislation or operations when acting within the sphere of its constitutional powers, and that any interfering legislation on their part is unconstitutional and void. The States cannot lay the weight of their little finger upon the powers of the General Government. The views of the Chief Justice on both branches of this case are now everywhere accepted and unquestioned, and their general adoption is among the most splendid and useful triumphs of Marshall's genius. As a complementary doctrine it may be stated that the Supreme Court, in other cases, have decided that the United States cannot tax, control or interfere with the agencies or instrumentalities of the States.3"1 Speaking of the opinion of Chief Justice Marshall in this case, Justice Miller says: " It takes in a very wide range with regard to the nature and power of the Federal Government, and the principles of construction of the Constitution. It is one of the ablest of the opinions delivered by Chief Justice Marshall, and has often been refý rred to and followed in subsequent cases." Miller, Const. of U. S. 389. Again referring to this case, the same great constitu1 Marshall Memorial, I, 370-374, address of John F. Dillon. Marshall's Constitufional Opinions. 296 tional judge says: "It is unnecessary for me to point out the great influence 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 wild-cat systems of paper money prevalent a few years since in this country,' can bear feelino testimony to the value of a so-called national bank system." Miller, Const. of U. S. 391. "It is a matter of interest, which I cannot forbear to mention here, that the present national bank system, which in my judgment, and in that of many thinking men, statesmen and financiers, is the best that the world has ever seen, originated during the midst of the civil war with the Secretary of the Treasury who afterwards came to Marshall's place as Chief Justice of the Supreme Court of the United States." Miller, Const. of U. S. 390, 391. "Just prior to the expiration of the charter of this bank (referring to M'Culloch v. Maryland) in 1836, the question of its renewal became one of absorbing public interest. The then President of the United States, General Jackson, brought all his influence and popularity to bear to prevent a renewal of its charter, and the questions entered into the partisan politics of the day more largely than any other, and to some extent continued to do so until the late war. The Congress of 1836 passed the bill for the recharter of the bank, but President Jackson vetoed it, largely on the ground that it was unconstitutional. It may be said, however, that the prevailing sentiment of the country, and especially of its leading statesmen, has been in the main favorable to the constitutionality of the United States Bank; and no decision of the Supreme Court, or of any other court of 1 For a history of " Wild Cat Currency " in this country, see Von Hoist, Const. Law of U. S. 126, note; MoMaster, Hist. of People of U S, V, 160 et seq; Bancroft, Hist of Const of U. S, I, book 2, ch. 6; author's Last Revise, VI, 167; Thorpe's Const. Hist. of the U. S., II, 510-512. 297 M'Culloch v. State of Maryland and Others. the United States, has ever impugned or denied the correctness of the principle upon which the case was decided." Miller, Const. of U. S. 390. See also Thorpe, 4.onst. History of U S., II, 474, Magruder's "John MarLiall," 194-198. " A case could not be selected from the decisions of the Supreme Court of the United States superior to this one of M'Culloch v. Maryland for the clear and satisfactory manner in which the supremacy of the laws of the Union have been maintained by the court, and an undue assertion of State power overruled and defeated." Kent, Com. (12th ed.), I, 427. " No other decision by the Supreme Court gives so clear and satisfactory a statement of the supreme character of national laws." Thorpe, Const Hist of U. S., II, 487. " If we regard at once the greatness of the questions at issue in the particular case, the influence of the opinion, and the large method and clear and skilful manner in which it is worked out, there is nothing so fine as the opinion in M'Culloch v. Maryland." Prof. James B. Thayer, " John Marshall," 85; Marshall Memorial, 1, 234. REFERENCES TO M'CULLOCH v. MARYLAND, IN MARSHALL MEMORIAL. VOL. L Justice Horace Gray, pp. 69, 70, 93; Prof. Jeremiah Smith, pp. 148, 149; Prof. James Bradley Thayer, pp. 234, 236; Prof. Henry St. George Tucker, p. 251; Judge Le Baron Colt, pp. 293, 299, 300, 304; Charles E. Perkins, p. 324; Hon. John F. Dillon, pp. 370 et seq.; Justice James T. Mitchell, pp. 384, 385; Hon. John Bassett Moore, pp. 518, 519. VOL II. Hon. William Pinkney Whyte, p. 16; Justice Henry B. Brown, pp. 53,56; Judge James C. MacRae, p. 80; Hon. H. Warner Hill, p 112; Joseph P. Blair, Esq., p. 156; Judge Horace H. Lurton, p. 204; Judge Waller C. Caldwell, p. 217; Chief Justice John A. Shauck, p. 229; Hampton L. Carson, Esq., p 261; Hon. John F. Follett, p. 295; Hon. William A. Ketcham, p. 293; Hon. Henry Cabot Lodge, pp. 329, 330; Marshall's Constitutional Opinions. 298 Isaac N. Phillips, Esq., pp. 389, 402; Gov. A. B. Cummins, p. 458; William McNett, Esq, pp. 462, 463, 464; Frederick W. Lehmann, Esq., pp. 468, 480; Hon. Henry Hitchcock, p. 515; James L. Blair, Esq., p. 526; Judge Elmer B. Adams, p. 537. VoL-. III. Judge John H. Rogers, pp. 36, 37; Chief Justice J. M. Bartholomew, p. 143; Judge Bartlett Tripp, p. 157; Judge T. B. McFarland, p. 184; Judge J. A. Cooper, p. 190; Hon. John D. Pope, p. 195; James E, Babb, Esq., p. 203; Hon. George H. Williams, pp. 220, 221, 223; Horace G. Platt, Esq., p. 232; Judge Cornelius H. Hanford, p. 250. CONSTITUTIONAL SANCTITY OF CONTRACTS - THEIR INVIOLABILITY BY THE STATES. The next case - known as the Dartmouth College Case,- by its construction of the Federal Constitution incorporated into American jurisprudence the principle that privileges and franchises granted by legislative act to aprivate corporation, when accepted and acted upon by the grantee, constitute a contract within the meaning of the clause of the Federal Constitution which secures the inviolability of contracts by ordaining that no State shall pass any law impairing their obligation; and consequently any subsequent law repealing or materially altering the charter of such a corporation is unconstitutional, unless the power to repeal or alter is reserved either specially or generally when the grant is made. No decision of the Supreme Court of the United States has been attended with more important practical consequences as respects both private contracts and legislative grants to corporations. It is difficult to say which is the greatest or most important of Marshall's decisions.' They constitute a long range of mountainous magnitude, extending in a continuous reach from 1803 to 1835. Viewing them, one will exclaim: " Marbury's Case presents the highest and most impressive peak! " Others will say the same of Gibbons v. Ogden, or of Cohens v. Virginia; and still another of the Maryland Bank Case. 1 "It is not uncommon to speak of the reasoning in Marbury v. Madison, and Dartmouth College v. Woodward, with the greatest praise. But neither of these is entitled to rank with Marshall's greatest work." Prof. James B. Thayer's "John Marshall," 84, ante, p. 256. Marshall's Constitutional Opinions. 300 Considered in its vital relation to the fundamental conception and purposes of the Union of the States created by the Constitution, and having in view the consequences of an opposite decision at that early and precarious period of our national history, Marbury's Case may perhaps justly be considered the most permanently important of all, since it constitutes the basis of American Constitutional Law. Doubtless the Union thus constituted would have been imperiled by a contrary decision of the Steamboat Case; or that of Cohens; or that of the Maryland Bank. These decisions are all essential parts of a whole. Nevertheless, it is perhaps true that in solid, massive, intellectual grandeur, the opinion of the Chief Justice in the Bank Case is the one that towers the highest,- the first to reflect the rising and the last to catch the setting sun. However the relative importance of these cases may be viewed, it is nevertheless true that the most famous of all is the Dartmouth College Case - famous in the sense of being more generally known to the public as well as to the profession. The comments on this case on Marshall Day, in the orations and addresses contained in the Marshall Memorial, show the estimate in which the Dartmouth College Case is held by the profession. Our national prosperity essentially rests upon the security of property and the inviolability of contracts.1 Contracts are a species of property. The decision in the Dartmouth College Case placed the security of contracts upon the 1 Speaking in 1885 of the American Union and its unexampled career, Sir Henry Maine declared and confessed that " all this beneficent prosperity reposes on the sacredness of contracts and the stability of private property; the first the implement, and the last the reward, of success in the general competition." Essays on Popular Government, p 51 (American Edition), quoted Laws and Jurisprudence of England and America, Dillon, p. 211 (Little, Brown & Co.). 301 301 rustees of Dartmouth Co/lcge v. WTeoocward. broadest possible basis. The Federal Constitution was there held not to limit its protective provisions to ordinary contracts between man and man, but to extend to legislative contracts as well; and to this extent its soundness and its beneficent operation and effect are undoubted. The principle of the case has never been unsettled in State or National jurisprudence. The application of the principle as to legislative grants to corporations has been limited so as to confine it to cases where it is evident that both the State and the grantee of its franchises intended to make an actual contract based upon sufficient consideration binding upon the State - a contract which should not be subject to future legislation which would impair its obligation. The doctrine of that case as thus finally settled and as now applied by the Supreme Court rests upon a solid foundation, and the doctrine itself has been one of the chief causes of our national and private prosperity. The effect of the decision has been much narrowed by the subsequent practice of the States in making legislative grants to corporations expressly to reserve the power to repeal, alter or modtify the charter or franchises granted. This reservation is contained in the Constitutions of many of the States, or in general or special acts of their Legislatures. The effect of such a reservation is not unlimited. It simply puts charters conferring corporate capacity or grants upon the same footing as to amendment or repeal as other statutes. Such reservation, therefore, authorizes the State to do whatever it might do on sound constitutional principles if it were not for the prohibition in the Federal Constitution, but it does not authorize the State to take away or destroy vested rights which have been acquired under the charter or Marshall's Constitutional Opinions.32 302 grant, or which, by a legitimate use of the powers granted, have become vested in the corporation.' The general nature of the action in the Dartmouth College case appears in the opinion of Chief Justice Marshall. The legal history of the case is as follows: In the State Superior Court of iNew Hampshire, the hig~hest court of the State, the case was first argued in May, 1817, by Jeremiah Mason and Jeremiah Smith for the plaintiffs (the old Board of Trustees who sued in their corporate name under the Royal Charter of 1769), and by George Sullivan and Ichabod Bartlett for Woodward (the defendant), who represented the new State Board appointed under the New Hampshire acts of 1816 amending, the charter. In September, 1817, the cause was reargued in the same court by the same counsel with the addition of Daniel Webster, then in the thirty-sixth year of his age. The arguments were able, and an examination of them shows they covered every legal point and every material consideration belonging to the cause. The Superior Court was constituted of Richardson, Chief Justice, and Bell and Woodbury, Justices, judges of learning, and deserved distinction. In November, 1817, the judgment of this court was given for the defendant, 1 Miller v. State, 15 Wallace, 478, per Mr. Justice Clifford; Sinking Fund Cases, 99 U. S. 700 (1878). per Waite, CJ. J.; Id., per Strong, J., 740, 741; Id., 758, per Field, J.; Greenwood v. Freight Co., 105 U. S. 13; Hamilton Gas Light & Coke Co. v. Hamilton City, 146 U. S. 258; People v. Cook, 148 U. 5. 897; Adirondack Ry. Co. v. New York, 160 N. Y. 225; Citizens' Savings Bank v. Owensboro, 173 U. 5. 651. See also the great case of People v. O'Brien, Receiver, growing out of the Act of the Legislature of New York of 1886 repealing the charter of the Broadway Surface Railway Company, and dissolving that corporation, decided in the Court of Appeals (1888), 111 N. Y. 1; Detroit v. Howell Plank Road Co., 43 Mich. 140, 147, per Cooley, J. 303 Trustees of Dartmouth College v. Woodward. sustaining the constitutional validity of the State legislation of 1816. The opinion of Chief Justice Richardson was concurred in by his associates and is marked by great clearness, force and ability. The New Hampshire court placed its judgment upon the grounds that the College was a public and not a private corporation, that the legislation of the State did not infringe any private rights or property of the trustees (the corporate plaintiffs), and that the charter of 1769 was not a contract within the meaning of the clause of the Federal Constitution prohibiting o"a State from impairing the obligation of contracts." This clause was in the opinion of the court only " intended to protect private rights of property and all contracts relating to private property, but not to limit the power of the States over their public officers and servants or their own civil institutions, nor over grants of power and authority by a State to individuals to be exercised for purposes merely public." The court was also of the opinion that if the charter of 1769 " can be construed to be a contract within the meaning of the Constitution of the United States, yet it contains no contract binding on the Legislature that the number of trustees shall not be augmented, and that the validity of the contract is not impaired by these acts" of 1816 amending the charter. On the record on the appeal to the Supreme Court of the United States the only questions open for discussion in that court were the two stated by Chief Justice Marshall in his opinion, viz.: (1) whether the charter of 1769 is a contract protected by the Constitution of the United States, and (2) whether it is impaired by the State acts of 1816 under which the defendant Woodward holds. The cause was argued in the Supreme Court in March, Marshall's Constitutional Opinions.30 304 1818, by Mr. Webster and Mr. Joseph Hopkinson of Philadelphia for the old board (the plaintiffs), and by M1r. John Holmes of Maine and Attorney General William Wirt for the new board (the defendant). The cause was decided by the Supreme Court of the UntdStates on the second day of the February term, 1819, Mr. Justice Todd being- absent. The opinion of the court was pronounced by Chief Justice Marshall and is given below in full. Separate concurring opinions were delivered by Mr. Justice Washington and Mr. Justice Story. Mr. Justice IDuvall alone dissented. The legal history and literature of the case are very voluminous and are quite f ully referred to in the Marshall Memorial. In addition to Mr. Wheaton's official report, a full report of the case was published by Timothy Farrar, Esq., in August, 1819, containing at length the pleadings, the Royal Charter, the special verdict, the State enactments of 1816 amending the charter, the arguments of the counsel in the Superior Court of New Hampshire, the opinion of that court, the arguments in the Supreme Court of the United States, the opinions in that court, and other matters.' The interest in the cause is perennial. In 1879 a learned and diligent lawyer of New Hampshire, Mr. John M. Shirley, embodied years of study and research in his work entitled "1Dartmouth Colleg~e Causes." The correspondence of Governor Plumer, Mr. Webster and others contains much interesting data relating to the cause.2I Mr. Henry Cabot Lodge has grouped and summarized the leading facts and incidents of this cause ceml6lbre ' See also reprint of Dartmouth College Case and arguments of counsel in the State Court, 65 New Hampshire Reports, pp. 473-497. 2 See views of Judge Doe, 67 New Hampshire Repoits, pp. 27-53; Marshall Memorial, 1., 155. B05 Trustees of Dartmouth College v. Woodward. with the skill of a literary artist and invested them with a living, personal, almost dramatic interest.1 Many valuable and suggestive comments, historical, critical and general, on the cause were made by learned and eminent orators on Marshall Day, whose orations and addresses appear in the Marshall Memorial and are referred to in the note at the end of Chief Justice Marshall's opinion in the present volume. To these we cannot here refer at length, but the reader will be specially interested in the observations of Professor Jeremiah Smith of Harvard, a son of the distinguished Jeremiah Smith who argued the cause of the College in the Superior Court of the State,2 and the remarks of President Tucker of Dartmouth, who frankly admits the dissensions in the College board and " that the State did not take the initiative - at least the moral initiative,- and did not of its own motion directly invade the rights of the College.3 1 Daniel Webster, by Henry Cabot Lodge, ch. III, pp. 72-98, 9th ed. See also Mr. Choate's classic Eulogy on Webster before Dartmouth College July 27, 1853, in the Addresses and Orations of Rufus Choate, Boston, 1887 (Little, Brown and Company), where the peroration of Mr. Webster in its "simple, sweet and perfect beauty," supplied by Professor Goodrich of Yale, is given (p. 271). See same volume, pp. 228, 229. Van Santvoord, Lives of the Chief Justices, etc., pp. 394 -398. For Mr. Webster's Argument ievised by himself, but omitting the peroration and much illustrative matter, see Webster's Works, V, 482-501, edition 1851 (Little and Brown). Curtis, George Tickior, Life of Webster, I, pp. 163-171. Mr. Webster's account of the arguments in the Supreme Court, see Kennedy's Life of Wirt, II, 82, 83; letter of Webster to Jeremiah Mason, March 13, 1818. Webster's Private Correspondence, I, 275; letter of same to Jeremiah Smith, March 14, 1818, Id. 276. Mr. Pinkney's Opinion of Wirt's Argument. Flanders, Lives of Chief Justices (ed. 1875), II, 447, note. Fiske, John, Essays Historical and Literary, I, 373-379, 1902. 2 Marshall Memorial, I, 154-156. 3 Marshall Memorial, I, 183. 20 Marshall's Constitutional Opinions. 306 Trustees of Dartmouth College v. Woodward. February Term, 1819. [4 Wheaton's Reports, 518-715.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The charter granted by the British Crown to the trustees of Dartmouth College, in New Hampshire, in the year 1769, is a contract within the meaning of that clause of the Constitution of the United States which declares that no State shall make any law impairing the obligation of contracts. The charter was not dissolved by the Revolution. An act of the State Legislature of New Hampshire altering the charter, without the consent of the corporation, in a material respect, is an act impairing the obligation of the charter, and is unconstitutional and void. That a corporation is established for purposes of general charity, or for education generally, does not, per se, make it a public corporation liable to tie control of the Legislature. Under its charter, Dartmouth College was a private and not a public corporation. On December 13, 1769, the King of Great Britain granted a charter to Dartmouth College in the province of New Hampshire. This was done upon the representation that property would be given said college if chartered; and when chartered, property was so given. This charter incorporated the twelve persons therein 307 Trustees of Dartmouth College v. Woodward. named and their successors by the name of "The Trustees of Dartmouth College." These were the plaintiffs in the action in their said corporate name and capacity. Under this charter the college went on, governed by trustees appointed in accordance with it, until 1816, when the Legislature of the State of New Hampshire passed three acts to amend this charter; which amendment the trustees declined to accept. The nature of these amendments is stated in the opinion of the Chief Justice. Woodward, the defendant, was secretary and treasurer of the college under the old charter; but was removed from his place as secretary in August, 1816, and from that of treasurer in September, 1816. In February, 1817, the new board of trustees was organized under the acts of 1816, and Woodward was appointed secretary and treasurer of the new board. He, as an officer under the old board, held the charter and other chattels of the college, and these he refused to give up to the old board. The old trustees in their corporate name thereupon sued him for these chattels, and judgment being given against them in the State courts, they now brought the case to the Supreme Court.' 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice. BUSHROD WASHINGTON, WILLIAM JOHNSON, BROOKHOLST LIVINGSTON, Associate Justices. THOMAS TODD, A1 GABRIEL DUVALL, JOSEPH STORY, Mr. Justice Todd was absent on account of indisposition. Mr. Daniel Webster and Mr. Joseph Hopkinson appeared for the plaintiffs in error. Mr. John Holmes and Attorney-General William Wirt appeared for defendant in error. Marshall's Constitutional Opinions.30 308 On the 2d of February, 1819, the opinion of the court was delivered as follows:# MARSHALL, Chief Justice. This is an action of trover Oiin brought by the trustees of Dartmouth College against William HI. Woodward, in the State court of New Hampshire, for the book of records, corporate seal, and other corporate property, to which the plaintiffs allege themselves to be entitled. A special verdict, after setting out the rights of the parties, finds for the defendant, if certain acts of the An action of trover by Legislature of New Hampshire passed the trustees against Woodward. on the 27th of June and on the 18th of December, 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 iN~ew Hampshire rendered a judgment upon this verdict for the defendant, which judgment has been brought Are the legislative actsJ Z4n referred to in the ver- before this court by writ of error. The dlict in violation of the Constitution of the single question now to be considered United States?0 is: Do the acts to which the verdict refers violate the Constitution of the United States? This court can be insensible neither to the magnitude nor 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 mnore 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 309 Trustees of Dartmouth College v. Woodward. 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, expost facto law, or law impairing the obligation of contracts." In the same instrument they have also said, "That the judicial power shall 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 protecting, 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 original charter 1769, incorporating twelve persons granted in 1769. therein mentioned, by the name of "The Trustees of Dartmouth College," granting to them and their successors the usual corporate 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 27th of June, 1816, and is entitled, " An act to amend the charter, and enlarge and ts to amed th improve the corporation, of Dartmouth charter 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 New Hampshire, and the Governor and Marshall's Constitutional Opinions. 310 Lieutenant-Governor of Vermont, for the time being, are to be members ex officio. The board is to be completed by the Governor 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 27th 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 Majority of trustees refuse to accept the have brought this suit for the corporate amended charter. 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 institution. In the application it is stated that large contributions have been made for the object, which will be conferred on the corporation as soon as it shall be created. The charter is granted, and on its faith the property is conveyed. Surely, in this transaction, every ingredient of a complete and legitimate contract is to be found. The points for consideration are - 1. Is this contract protected by the The two questions to Constitution of the United States? be decided. 2. Is it impaired by the acts under which the defendant holds? 1. On the first point it has been argued that the word 9" contract " in its broadest sense would comprehend the political relations between the government and its citizens, would extend to offices held within a State for State purposes, and to many of those laws concerning civil in 311 3Trustees of Dartmouth College v. Woodward. stitutions, which must change with circumstances, and be modified by ordinary legislation, which deeply concern the public, and which, to preserve good government, the public judgment must control. That even marriage is a contract, and its obligations are affected by the laws respecting divorces. That the clause in the Constitution, if construed in its greatest latitude, would prohibit these laws. Taken in its 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 purposes of internal government, and which, to subserve those purposes, ought to vary with varying circumstances. That, as the framers of the Constitution could never have intended to insert in that instrument Term "contract "must a provision so unnecessary, so mis- be taken here in alimited sense. chievous, and so repugnant to its general spirit, the term "contract" must be understood in a more limited sense. That it must be understood as intended to guard against a power of at least doubtful utility, the abuse of which had been extensively'felt; and to restrain the Legislature in future from violating the right to property. 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 faithful 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 contracts," that is, of contracts respecting property, under which some individual could AMarshall's Constitutional Opinions. 312 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 controverted. 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 embrace 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 never has been understood to restrict the general right of the Legislature to legislate on the subject of divorces. Those acts enable some tribunal, not to impair a marriage contract, but to liberate one of the parties, because it has been broken by the other. When any State Legislature shall pass an act annulling all marriage contracts, or allowing either party to annul it without the consent of the other, it will be time enough to inquire whether such an act be constitutional. The parties in this case differ less on general principles, less on the true construction 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 create a civil institution, to be employed in the administration of the government, or if the funds of the college be public property, or if the State of New 313 Trustees of Dartmouth College v. Woodward. Hampshire, 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 prop- Distinction drawn beerty for objects unconnected with gov- tweenprivate eleemosynary institution anda ernment, whose funds are bestowed by lnstitution - Dif individuals, on the faith of the charter; case if the donors have stipulated for the future disposition 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 examine this charter and to ascertain its true character. Marshall's Constitutional Opinions. 314 From the instrument itself it appears that, about the Aistoryofthecollege- year 1754, the Rev. Eleazer Wheelock Brief review of. established, at his own expense, and on his own estate, a charity school for the instruction of Indians in the Christian religion. The success of this institution inspired him with the design of soliciting contributions in England for carrying on and extending his undertaking. In this pious work he employed the Rev. 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 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 river, in the western part of New Hampshire, that situation being supposed favorable for carrying on the original design among the Indians, arid 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. Wheelock 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 America, to be members of the proposed corporation. "In consideration of the premises," "for the education and instruction of the youth of the Indian tribes," etc., "and also of English youth, and any others," the charter was granted, and the trustees of Dartmouth College were by that name created a body corporate, with power, for the ase of tie 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. 315 Trustees of Dartmouth College v. Woodward. The charter proceeds to appoint Eleazer Wheelock, "the founder of said college," president Eleazer Wheelock the thereof, with power by his last will to founder of the college appoint a successor, who is to continue in office until disapproved by the trustees. In case 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 officers, 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 Britain or of New Hampshire, and not excluding any person on account 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 college, was conveyed to and vested in the corporate body. From this brief review of the most essential parts of the charter it is apparent that the funds Funds of college conof the college consisted entirely of sisted of private donations. 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 contributors. Yet the legal conclusion from the facts recited in the charter would probably be that Dr. Wheelock was the founder of the college. The origin of the institution was undoubtedly the In Marshall's Constitutional Opinions. 316 dian charity school established by Dr. Wheelock at his own expense. It was at his instance, and to enlarge this school, that contributions were solicited in England. The person soliciting these contributions was his agent; and the trustees who received the money were appointed by, and act 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 declared 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 founder1 of this institution, and as possessing all the rights appertaining to that character. But be this as it may, Dartmouth ColSalaries of tutors lege is really endowed by private indidrawn from funds do- viduals who have bestowed their funds nated by private indi-I viduals for the propagation of the Christian religion among the Indians, and for the promotion 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 eleemosynary,2 and, as far as respects its funds, a private corporation. Do its objects stamp on it a different character? Are the trustees and professors public officers, 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 11 B1. Com. 481. - Ibid. 471. 317 Trustees of Dartmouth College v. Woodward. proper subject of legislation, all admit. That there may be an institution founded by government, and placed entirely under its immediate control, the officers of which would be public officers, amenable exclusively to government, none will deny. But is Dartmouth College 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. Dr. Wheelock, as the keeper of his charity school, instructing the Indians in the art of reading and in our holy religion, sustaining them at his own expense and on the voluntary contributions of the charitable, could scarcely be 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 Enlargement of school to legislative management, because they wrought no change in SWheelock's character were applied to the purposes of educa- or the nature of his duties. tion. 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 private tutors; and the fact that they Marshall's Constfitutional Opnos01 318 wiere employed in the education 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 person~s 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 Corporation defined, those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are 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 individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity, of perpetual conveyances for the purpose of transmitting it from hand 0019 319 rustees of Dartmouth College v. Woodward. to hand. It is chiefly 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 beingr 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 political power, or a political character, than immortality would confer 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 individuals 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 government of the country? Is it because its existence, its capacities, its powers, are given by law? B~ecause the government has griven 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 changye 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 coun- Objects for which cr try; and this benefit constitutes the porations are created. consideration, and, in most cases, the sole consideration Marshall's Constfitutional Opinions. 320 of the grant. In most eleemosynary institutions the object would be difficult, perhaps unattainable, without the aid of a charter of incorporation. Charitable or public spirited individuals, desirous of making permanent appropriations for charitable or other useful purposes, find it impossible to effect their design securely and certainly without an incorporating act. They apply to the government, state their beneficent object, and offer to advance the money necessary for its accomplishment, provided the government will confer on the instrument which is to execute their designs 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 advantag-es to the public constitute a full compensation for the f acull.ty it gives, there can be no reason for exactingý a further compeinsation, by claiming a right to exercise over this artificial being a power which changes its nature, and touches the f und for the security and application of which it was created. There can be no reason for implying in a charter, given for a valuable consideration, a power which is not only not expressed, but is in direct contradiction to its express stipulations. Fromn 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 Character of civil insti- out of the manner in -which they are tutions is determined formed and theobet for whic they by the manner in whichobet wuc they are formed and the objects for which are created. The rgttochnetm they are created is not founded on their being incorporated, but on their being the instruments of government, 821 Trustees of Dartmouth College v. Woodward. created for its purposes. The same institutions, created for the same objects, though not incorporated, would 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 incorporating 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 For whose benefit the that the beneficial interest is in the property given to the college was secured? 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 indicate a willingness that New Hampshire should enjoy those advantages 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 ntendedfor the province is that which is derived from " establishing the best means of education therein; " that is, from establish21 Marshall's Constitutional Opinions. 322 ing in the province Dartmouth College, as constituted by the charter. But if these words considered alone could admit of doubt, that doubt is completely removed by an inspection of the entire instrument. The particular interests of New Hampshire never entered into the mind of the donors, never constituted a motive for their donation. The propagation of the Christian religion among the savages, 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; but nothing particular or exclusive was intended for her. Even the site of the college was selected, not for the sake of New Hampshire, 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 the institution should be there established. 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 river. The clause which constitutes 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 generally, not the interests of New Hampshire particularly. From this review of the charter it appears that Dartmouth College is an eleemosynary instiDaltrnouti College an eleemosynary institu- tution, incorporated for the purpose of Vion perpetuating the application of the bounty of the donors to the specified objects of that bounty; that its trustees or governors were originally 3200.23 rustees of Dartmouth College v. Woodwa.rd. 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 administration 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 bestowed 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. Could 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 fluctuating, and no individual among our youth has a vested interest in the institution which can be asserted in a court of justice. 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 protected. Can can this be a contract this be such a contract as the Constitu- such as the constitution intended to withtion intended to withdraw from the draw from the power of State legislation? 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. Marshall's Constitutional Opinions.32 324 The court has bestowed on this argument the most deliberate consideration, and the result Result of court's con- atn sideration of the uat- will be stated. Dr. Wheelock, atn ureofths onrat. for himself, and for those who, at his solicitation, had made contributions to his school, applied for this charter, as the instrument 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 distributing 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. IBut in this respect their descendants are not their representatives. They are represented by the corporation. The corporation is the assignee of their rights, stands in their place, and distributes 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 distributively, are imperceptible, amount collectively to a most important interest. These are, in the aggregate, to be exercised, asserted, and protected by the corporation. They were as completely out of the donors, at the instant of their being vested in the corporation, 325 35 Trustees of Dartmouth College v. Woodw~~ard. and as incapable of being, asserted by the students, as at present. According to the theory of the British Constitution, their parliament is omnipotent. To annul corporate rigrhts might give a shock to public opinion, which that government has chosen to avoid; but its power is not questioned. Had parliament, immediately 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 disappointment of their hopes, the perfidy of the transaction would have been universally acknowledged. 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 The contractual elements, obligations and prpryconfided to their protection. rights the same as in property1A69 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 succeeds), were the original parties. It is a contract made on a valuable consideration. It is a contract for tile security and disposition A contract within the of property. It is a contract on the letter of the Constitufaith of which real and personal estatetin has been conveyed to the corporation. It 'is, then, a contract within the letter of the Constitution, and within its Marshall's Coinstitutional Opinions. 326 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 Constitution. 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 introduced 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 Legislatures. But although a particular and a rare case may not in itself be of sufficient 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 particular case been suggested, the language would have been so varied as to exclude it, or it would have been made a special exception. The case, 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 repugnant to the general spirit of the instrament, 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, 327 Trustees of Dartmouth College v. Woodward. no sentiment delivered by its contemporaneous expounders, which would justify us in making construction of the it. In the absence of all authority Constitution of this kind, is there, in the nature and reason of the case itself, that which would sustain 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 unworthy of the attention of those who framed the instrument? Or does public policy so imperiously demand their remaining exposed to legislative alteration as to compel us, or rather permit us, to say that these words, which were introd(uced 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 relig- All eleemosynary corion, of charity, or of education, are of porations are of the same general charthe same character. The law of this acter case is the law of all. In every literary or charitable institution, unless 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 identified with, and personated by, the trustees; and their rights are to be defended and maintained by them. Religion, charity, and education 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 con Marshall's Constitutional Opinions.38 328 tracts for their benefit must be excluded from the pro-. tection of words which in their natural import include them? Or do such contracts so necessarily require newmodeling 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 Widespread interest M1wihti aehs xie rvsta ti fs.wihthis case.hsectd rvsta 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 reserving 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 respective 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 in tend 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 not 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 f orced construction of that instrument in order to effect it. These Beneficent influence of eleemosynary corpora- eleemosynary institutions do not fill tions. the place which would otherwise be occupied by government, but that which would other 1029 Trustees of Dartmouth College v. Woodward wise 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 requires 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 institution; 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. All 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 injurious embarrassments, they stilt deemed it necessary to leave these contracts subject to those interferences. The motives for such an exception must be very powerful, to justify the construction which makes it. The motives suggested at the bar grow out of the original appointment of the trustees, which is supposed to have been in a spirit hostile to the genius of our government, and the presumption that, if allowed to continue Marshball's Constitutional Opinions.30 830 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 correctingr and improving hand of the Legislature. It has been urged repeatedly, and certainly with a deg-ree of earnestness which attracted attention, that the trustees, deriving their power from a regal source, must necessarily partake of the spirit of their origin; 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 argumen tought 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? Ly whom-r were thley selected? The charter informs us. Dr. Wheelock had represented "1that, for many weighty reasons, it would be expedient that the gentlemen whom he had already 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 persons 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 IRepresentatives of the Colony of INew Hampshire. The stations filled by these persons ought to rescue them from any other imputation than too goreat a dependence on the Crown. If in the 331 Trustees of Dartmouth College v. Woodward. revolution 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 M r ost of original trusmost of them, were named by Dr. tees named by Dr. Wheelock Wheelock, and those who were added to his nomination, most probably with his approbation, were among the most eminent and respectable individuals in New Hampshire. The only evidence which we possess of the character of Dr. Wheelock is furnished by this charter. The judicious means employed for the accomplishment of his object, and the success which attended his endeavors, would lead to the opinion that he united 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 probability can it be assumed that, while the light of science and of liberal principles pervades the whole community, these originally benighted trustees remain in utter darkness, incapable of participating in the general improvement; that, while the human race is rapidly advancing, they are stationary. Reasoning 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 con Marshall's Constitutional Opinions. 332 struction 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 This is a contract the obligation of which which cannot be impaired without viocannot be impaired. lating the Constitution of the United States. This opinion appears 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 Inquiry as to validity of Acts of New Hamp- of the Legislature of New Hampshire shire. 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 removing tutors, of fixing their salaries, of directing the course of study to be pursued by the students, and of filling up vacancies created 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 i(made no violent alteration in its essential terms without impairing its obligation. By the revolution, the duties, as well as the powers, of government devolved on the people of New Hampshire. It is admitted that among the latter was comprehended the transcendent power of parliament, as well as that of the executive department. It is too clear to require the support of argument, that all contracts and rights respect 333 3 Trustees of Dartmouth College v. Woodward. ing property remained unchanged by the revolution. The obligations, then, which were created by Obligations created by the charter to Dartmouth College,uoriginaltcharter same under the new,,overnwere the same in the new that they ment as the old. 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 additional 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 appointment 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 important acts of the trustees. On the effect of this law two opinions cannot be entertained. Between acting directly, and acting through the agency of trustees and overseers, no essential difference is perceived. The whole power of governing the college is transferred from trustees, appointed 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 Marshall's Constitutional Opinions. 334 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 foresight can provide, retain forever the government of the literary institution they had formed in the hands of persons approved by themselves. This system is totally changed. The charter of 1769 exists no longer. It is reOriginal charter of 1769 no longer exists. organized; and reorganized in such a manner as to convert a literary institution, moulded 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 subversive 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 interest in themselves as the law may respect. In addition to their being the legal owners of the property, and to their hay 335 Trustees of Dartmouth College v. WoodC ard. ing a freehold right in the powers confided to them, the charter itself countenances the idea that trustes may also be tutors with salaries. 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 Howeoffcefpresident 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 possessing the whole legal and equitable interest, and completely representing 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 Acts of New Hampshire repugnant to the stated in the special verdict found in Constitution 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, therefore, be reversed. Marshall's Constitutional Opinions. 336 NOTE. Mr. Justice Miller's rank as a great constitutional lawyer induces the editors to give at some length his views concerning the Dartmouth College decision. " It may well be doubted whether any decision ever delivered by any court has had such a pervading operation and influence in controlling legislation as this. The legislation, however, so controlled, has been that of the States of the Union." Miller, Const. of U. S. 391. "But it was in the great case of Dartmouth College v. Woodward that the inhibition upon the States to impair by law the obligation of contracts received the most elaborate discussion, and the most efficient and instructive application.... It contains one of the most full and elaborate expositions of the constitutional sanctity of contracts to be met with in any of the reports. The decision in that case did more than any other single act proceeding from the authority of the United States to throw an impregnable barrier around all rights and franchises derived from the grant of government; and to give solidity and inviolability to the literary, charitable, religious and commercial institutions of our country." Kent, Com., 12th Ed., I, 415, 418. " This decision has stood from the day it was made to the present hour as a great bulwark against popular effort through State legislation to evade the payment of just debts, the performance of obligatory contracts, and the general repudiation of the rights of creditors." Miller, Const. of U. S. 394. "The opinion has been of late years much criticised, as including with the class of contracts whose foundation is in the legislative action of the States, many which were not probably intended to be so included by the framers of the Constitution. And it is undoubtedly true that the Supreme Court itself has been compelled of late years to insist in this class of cases upon the existence of an actual contract by the State with the corporation, when relief is sought against subsequent legislation." Miller, Const. of U. S. 393. See also, s. P., Prof. James B. Thayer's "John Marshall," 92, 93; Von Hoist, Const. Law of U. S. 234, 235; Prof. Jeremiah Smith in Marshall Memorial, I, 154-156. 337 37 Trustees of Dartmouth College v. Woodward. "11The main feature of the case, namely, that a State t~an make a contract by leg-islation as well as in any other way, and that in no such case shall a subsequent act of the Legislature interpose any effectual -barrier to its enforcement when it is enforceable in the ordinary courts of justice, has remained." Miller, Coust. of U. S. 393. "It is an interesting chapter in the legal history of this country to consider how, after this decision was rendered, the States sought to, and did practically, avoid the, worst effects of it by putting into all statutes granting corporate privileges and powers the condition that the, charter should be subject to amendment, alteration, or repeal, at the pleasure of the Legislature. This, of course, entered into and became a part of the contract, which was not, therefore, violated or impaired by a subsequent statute abolishing or changing the corporation." Miller, Const. of U. S. 0557, 5058. See also, s. P., Ibid. 532, 533. See ante, pp. 194, 210. REFERENCES TO DARTMOUTH COLLEGE CASE, IN MARSHALL MEMORIAL VOL. 1. Hon. Wayne MacVeagh, p. 37; Justice Horace Gray, pp. 70, 93; Hon. Charles Freeman Libby, p. 121; Hon. George B. French, pp. 135, 136; Prof. Jeremiah Smith, pp. 148, 154, et seq.; Judge Robert M. Wallace, pp. 176, 177; Frank S. Streeter, Esq., pp. 178, 179; President William J. Tucker, pp. 181, 182, 183; Prof. James Bradley, Thayer, pp. 234, 235; Judge Le Baron Colt, p. 304; Hon. John F. Dilion, p. 368 et seq.; Hon. W. Bourke Cockran, p. 414; Justice James T. Mitchell, p. 484; Hon. John Bassett Moore, p. 518. VoL. IL Hon. William Pinkney Whyte, p. 16; Justice Henry B. Brown, pp. 53, 54, 56, 59; Judge James C. MacRae, pp. 80, 81; Hon. H. Warner Hill, pp 112, 113, 115; Joseph P. Blair, Esq., p. 156; Colonel Horatio Bisbee, p. 169; Judge Wailer C. Caldwell, p. 217; Hampton L. Carson, Esq., p. 261; Hon. John F. Follett, p, 2796; Hon. William A. Ketcham, 22 Marshall's Constitutional Opinions. 338 p. 295; Hon. Henry Cabot Lodge, p. 329; Isaac N. Phillips, Esq., p. 889; Geo. E. MacLean, Esq., p. 440; Hon. Henry Hitchcock, p. 515; Judge Elmer B. Adams, p. 539. VOL. III. Chief Justice J. M. Bartholomew, p. 143; Judge Bartlett Tripp, p. 157; Judge J. A. Cooper, p. 190; Horace G. Platt, Esq., p. 232; Judge Cornelius H. Hauford, pp. 250, 251; Charles E. Sliepard, Esq., p. 273; Eulogy of Horace Binney, p. 319. CONSTITUTIONAL POWER OF CONGRESS TO LEVY DIRECT TAXES THROUGHOUT TflE UNITED STATES. The decision in the next case -Loughboroug-h v. Blake - and particularly that portion of the opinion of Chief Justice Marshall relating to the uniformity clause of the Constitution that " all duties, etc., shall be un~iformn throughout the United States," came into great prominence in the elaborate discussions of counsel in the Insular Cases.' It will aid to a more ready comprehension of the following opinion to collate here the different provisions of the Constitution that are construed or commented on by the Chief Justice: Section 8, Art. I. "The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and General Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States. "To exercise exclusive Legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the Government of the United States, and to exercise like authority over all places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, 1 De Lima v. Bidwell, etc., 182 U. S. 1-391 (1901). See note at end of this case in the present volume. Marshall's Constitutional Opinions.34 340 magazines, Arsenals, dock-Yards, and other needful buildings. Sec. 9, Art. 1. 1"No Capitation, or other direct tax, shall be laid, unless in proportion to the Census or Enumeration herein before directed to be taken. Sec. 2, Art. 1. 1"Representative and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers." Congress levied a direct tax. In the apportionment of this tax the Territories and the District of Columbia were included as well as the States. The point was made in Loughborough v. Blake, that inasmuch as the Territories and the District of Columbia were not Stales, they could not under the Constitution be made subject to the levy and payment of a direct tax. But this contention was adjudged by the Supreme Court not to be sound, and the validity of the direct tax upon the District of Columbia was sustained on the grounds stated in the opinion of the Chief Justice. Lougliborougha v. Blake. February Term, 1820. [5 Wheaton's Reports, 317-325.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States. Congress has authority to impose a direct tax on the District of Columbia in proportion to the census directed to be taken by the Constitution. 341 Loughborough v. Bialc The power of Congress to levy and collect taxes, duties, imposts and excises is co-extensive with the territory of the United States. The power of Congress to exercise exclusive jurisdiction in all cases whatsoever within the District of Columbia includes the power of taxing it. MARSHALL, Chief Justice. This case presents to the consideration of the court a single question.' It opinion. is this: Has Congress a right to impose a direct tax on the District of Columbia? The counsel who maintains the negative has contended that Congress must be considered in two distinct characters. In one character, as legislating for the States; in the other, as a local legislature for the District. In the latter character, it is admitted, the Sole question in case: Has Congress a right power of levying direct taxes may be to impose a direct tax on the District of Coexercised; but it is contended, for Dis- lumbia? trict purposes only, in like manner as the Legislature of a State may tax the people of a State for State purposes. Without inquiring at present into the soundness of this distinction, its possible influence on the application in this District of the first article of the Constitution, and 1 The court was constituted as follows: JOHN MARSHALL, Chief Justica BUSHROD WASHINGTON, WILLIAM JOHNSON, BROCKHOLST LIVINGSTON, Associate Justices. THOMAS TODD, GABRIEL DUVALL, JOSEPH STORY, J Mr. Walter Jones appeared for the plaintiff; Attorney-General Wirt for the defendant. Marshall's Constitutional Opinions. 342 of several of the amendments, may not be altogether unworthy of consideration. It will readily suggest itself to the gentlemen who press this argument, that those articles, which, in general terms, restrain the power of Congress, may be applied to the laws enacted by that body for the District, if it be considered as governing the District in its character as the National Legislature, with less difficulty than if it be considered a mere local Legislature. But we deem it unnecessary to pursue this investigation, because we think the right of Congress to tax the District does not depend solely on the grant of exclusive legislation. The eighth section of the first article gives to Congress Wordingof the eighth the " power to lay and collect taxes, section of article 1 duties, imposts, and excises," for the purposes thereinafter mentioned. This grant is general, without limitation as to place. It consequently extends to all places over which the government extends. If this could be doubted, the doubt is removed by the subsequent words which modify the grant. These words are, "but all duties, imposts, and excises shall be uniform throughout the United States." It will not be contended that the modification of the power extends to places to which the power itself does not extend. The power, then, to lay and collect duties, imposts, and excises may be exercised, and must be exercised, throughout the United States. Does this term designate the The grant is general and includes the entire whole, or any particular portion, of Union. the American empire? Certainly this question can admit of but one answer. It is the name given to our great republic, which is composed of States and Territories. The District of Columbia, or the terri 343 343 Loughborough v. Blake. tory west of the Missouri, is not less within the United States than Maryland or Pennsylvania; and it is not less necessary, on the principles of our Constitution, that uniformity in the imposition of imposts, duties, and excises should be observed in the one than in Power to lay and colthe other. Since, then, the power to lect taxes is co-extensive with power to lay lay and collect taxes, which includes and collect duties, imposts, etc. direct taxes, is obviously co-extensive with the power to lay and collect duties, imposts, and excises, and since the latter extends throughout the United States, it follows that the power to impose direct taxes also extends tbrougýhout the United States. The extent of the grant being ascertained, how far is it abridged by any part of the Constitution? The twentieth [second] section of the first article declares that "1representatives and directApotnmtofrtaxes shall be apportioned among the resentatives and diseveral States which may be included within this Union, according to their respective numbers." The object of this regulation is, we think, to furnish a standard by which taxes are to be apportioned, not to exempt from their operation any part of our country. Had the intention been to exempt from taxation those who were not represented in Congress, that intention would have been expressed in direct terms. The power having been expressly granted, the exception would have been expressly made. But a limitation can scarcely be said to be insinuated. The words used do not mean that direct taxes shall be imposed on States only which are represented, or shall be apportioned to representatives; but that direct taxation, in its application to States, shall Marshall's Constitutional Opinions.34 344 be apportioned to numbers. Representation is not made the foundation of ta xation. If, under the enumeration of a representative for every thirty thousand souls, one State had been found to contain fifty-nine thousand, and another sixty thousand, the first would have been entitled ClaseofContiutonto only one representative, and the last not intended to create to two. Their taxes, however, would any exemption from taxation, not have been as one to two, but as fifty-nine to sixty. This clause was obviously not intended to create any exemption from taxation, or to make taxation dependent on representation, but to furnish a standard for the apportionment of each on the States. The fourth paragraph of the ninth section of the same Wording of fourth article will next be considered. It is in paragraph of ninth section. these words: "No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken." The census referred to is in that clause of the Constitution which has just been considered, which makes numnbers the standard by which both representatives and direct taxes shall be apportioned among the States. The actual enumeration is to be made "1within three years after the first meetingr of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct." As the direct and declared object of this census is to furnish a standard by which "representatives and direct taxes may be apportioned amongr the several States which may be included within this Union," it will be admitted that the omission to extend it to the District or the Territories would not render it defective. The census referred to is admitted to be a census exhibiting the numbers of the respective States. It cannot, however, 345 345 Louglbo'rough v. Blake. be admitted that the argument, which limits the application of the power of direct taxation to the population contained in this census, is a just one. The language of the clause does not imply this restriction. It is not that "no capitation or other direct tax shall be laid, unless on those comprehended within the census, herein before directed to be taken," but "1unless in proportion to " that census. Now this proportion may be applied to the District or Territories. If an enumeration be taken of the population in the District and Territories, on the same principles on which the enumeration of the respective States is made, then the information is acquired by which a direct tax may be imposed on the District and Territories "1in proportion to the census or enumeration" which the Constitution directs to be taken. The standard, then, by which direct taxes must be laid, is applicable to this District, and will enable Congress to apportion on it its just and equal share of Standard by which dithe urde wih th sam acurac asrect taxes must be laid th bren Ithtesm cuaya applicable to District on the respective States. If the tax be o ouba laid in this proportion, it is within the very words of the restriction. It is a tax in proportion to the census or enumeration referred to. But the argument is presented in another form, in which its refutation is more difficult. It is urged against this construction that it would produce the necessity of extending (lirect taxation to the District and Territories, which would not only be inconvenient, but contrary to the understanding, and practice of the whole government. If the power of imposing direct taxes be co-extensive with the United States, then it is contended that the restrictive clause, if applicable to the District and Territories, requires that the tax should be extended to them, Marshall's Constitutional Opinions. 346 since to omit them would be to violate the rule of pro. portion. We think a satisfactory answer to this argument may be drawn from a fair comparative view of the different clauses of the Constitution which have been recited. That the general grant of power to lay and collect taxes is made in terms which compreGeneral grant of power to lay and collect taxes hend the District and Territories, as well comprehends the District of Columbia and as the States, is, we think, incontrovertthe Territories. ible. The subsequent clauses are intended to regulate the exercise of this power, not to withdraw from it any portion of the community. The words in which those clauses are expressed import this intention. In thus regulating its exercise, a rule is given, in the second section of the first article, for its application to the respective States. That rule declares how direct taxes upon the States shall be imposed. They shall be apportioned upon the several States according to their numbers. If, then, a direct tax be laid at all, it must be laid on every State, conformably to the rule provided in the Constitution. Congress has clearly no power to exempt any State from its due share of the burden. But this regulation is expressly confined to the States, and creates no necessity for extending the tax to the District or Territories. The words of the ninth seetion do not in terms require that the system of direct taxation, when resorted to, shall be extended to the Territories, as the words of the second section require that it shall be extended to all the States. They therefore may, without violence, be understood to give a rule when the Territories shall be taxed, without imposing the necessity of taxing them. It could scarcely escape the members of the convention that the expense of executing the law in a Terri 347 Loughborough v. Blake. tory might exceed the amount of the tax. But be this as it may, the doubt created by the words of the ninth section relates to the obligation to apportion a direct tax on the Territories as well as the States, rather than to the power to do so. if, then, the language of the Constitution be construed to comprehend the Territories and the If language of ConstiDistrict of Columbia as well as the tution includes Territories and District of States, that lanuage confers on Con- Columbia, then it may u n tax them as well as gress the power of taxing the District States. and Territories as well as the States. If the general language of the Constitution should be confined to the States, still the sixteenth paragraph of the eighth section gives tp Congress the power of exercising "exclusive legislation in all cases whatsoever within this District." On the extent of these terms, according to the common understanding of mankind, there can be no difference of opinion; but it is contended that they must be limited by that great principle which was asserted in our revolution, that representation is inseparable from taxation. The difference between requiring a continent, with an immense population, to submit to be taxed by a government havingr no common interest with it, separated from it by a vast ocean, restrained by no principle of apportionment, and associated with it by no common feelings; and permitting the representatives of the American people, under the restrictions of our Congress has power to Constitution, to tax a part of the soci- lay a direct tax in the District of Columbia ety, which is either in a state of infancy advancing to manhood, looking forward to complete equality so soon as that state of manhood shall be attained, as is the case with the Territories; or which has voluntarily relinquished the right of representation, and has adopted Marshall's Constitutional Opinions. 318 the whole body of Congress for its legitimate government, as is the case with the District, is too obvious not to present itself to the minds of all. Although in theory it might be more congenial to the spirit of our institutions to admit a representative from the District, it may be doubted whether in fact its interests would be rendered thereby the more secure; and certainly the Constitution does not consider their want of a representative in Congress as exempting it from equal taxation.1 If it were true that, according to the spirit of our Constitution, the power of taxation must be limited by the right of representation, whence is derived the right to lay and collect duties, imposts, and excises within this district? If the principles of liberty, and of our Constitution, forbid the raising of revenue from those who are not represented, do not these principles forbid the raising it by duties, imposts, and excises, as well as by a direct tax? If the principles of our Revolution give a rule applicable to this case, we cannot have forgotten that neither the Stamp Act nor the duty on tea were direct taxes. Yet it is admitted that the Constitution not only allows but enjoins the government to extend the ordinary revenue system to this District. If it be said that the principle of uniformity, established in the Constitution, secures the District from oppression in the imposition of indirect taxes, it is not less true that the principle of apportionment, also established in the Constitution, secures the District from any oppressive exercise of the power to lay and collect direct taxes. After giving this subject its serious attention, the court is unanimously of opinion that Congress possesses, under the Constitution, the power to lay and collect direct taxes 'See note at end of this case, infra, p. 349. 349 Loughborough v. Blake. within the District of Columbia, in proportion to the census directed to be taken by the Constitution, and that there is no error in the judgment of the Circuit Court. Judgment affirmed. NOTE. The "Insular Cases" (De Lima v. Bidwell, etc.) are officially reported in 182 U. S. 1-391 (1901). In "The Insular Cases, comprising Records, Briefs, etc., by Albert iI. Howe," compiled and published by order of Congress, 1901, Loughborough v. Blake is referred to and comrmented on by counsel at pages 42, 83, 88, 111, 247, 330, 389, 419, 480, 541, 570, 862, 885, 889, 995, 1008, 1055. See also Judson on Taxation, 490-495. This learned author discusses with care the propositions that the taxingc power of Congress is co.extensive with the territory of the United States, the question of uniformity of Federal taxation and levy of duties, the application of the uniform clause to the territory acquired by the United States as a result of the war with Spain, and to territorial acquisitions generally, with a statement of the points ruled in the Insular Cases. Concerning Loughborough v. Blake, Justice Brown, in his opinion in the Insular Cases, states that the proposition of Chief Justice Marshall, that the taxing power of Congress is co-extensive with the territory of the United States, and included the District of Columbia, is, so far as it relates to the District of Columbia, entirely sound; but that Marshall's views so far as they apply to the Territories were not called for by the exigencies of the case (182 U. S. 162). But see on this point (contra) the opinion of Justice White, Id., p. 292, and dissenting opinion of Fuller, C. J., Id., 252. See also Address on the Insular Cases of Mr. Littlefield of the Bar of the State of Maine before the American Bar Association, page 242 of the report of 1901. Forcible resistance to the collection of direct taxes when treasonable, see United States v. Burr, ante, pp. 103, 104, 105, where the opinions of Justices Iredell, Paterson and Chase at the Circuit are stated and reviewed by Chief Justice Marshall; and see also United States v. Vigol, 2 Marshall's Constitutional Opinions. 350 Dallas, 346; United States v. Mitchell, 2 Dallas, 348; Impeachment Trial of Justice Chase (Evans' Report), pp. 42-48 of the appendix to said volume. The case of the American Insurance Company v. Canter, 1 Peters, 511, 1828 (which will be found also in the present volume, infra), reasserted the proposition that whether the power of Congress to govern Territories is derived from the right of the United States to acquire territory or from the clause in the Constitution that authorizes Congress to make all needful rules and regulations concerning the territory and other property of the United States, the existence of the power was unquestioned. "A question has arisen and has been decided that 'direct taxes' as used in the Constitution, though in terms to be apportioned among the several States according to their respective numbers and with the negative provision that no 'capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken,' may still be laid constitutionally upon the people of the District of Columbia, and upon the people of the Territories of the Union, according to the apportionment referred to. The language, though in terms confined to the States, is taken in connection with the general terms of the power to ' lay and collect taxes,' etc., as embracing the District of Columbia and Territories within the power of taxation, so as that direct taxes should be apportioned to them according to their numbers, and all other forms of taxation, as ' duties, imposts and excises,' should be uniform with those laid elsewhere than in the District and in the Territories." Tucker, Const. of U. S., I, 468, 469. " The question was of a local nature.. but there were principles involved in the decision which had an extensive and important relation to the whole United States." Kent, Com., I, 256. "The Constitution, by giving the power to lay and collect taxes, in general terms, doubtless meant to include all sorts of taxes, whether direct or indirect." Story, Com. Const., II, ~~ 946, 947. See also references to this case, Id., ~~ 951, 995 et seq. " In an early case the question was raised whether Congress had the power to tax the District of Columbia; and 351 Loughborough v. Blake. it was held that the power to levy and collect taxes, du ties, imposts and excises was co-extensive with the territory of the United States But if a public enemy conquers and occupies a portion of the United States, the portion so occupied becomes foreign territory so far as revenue laws are concerned, and the subsequent restoration of the authority of the United States over it does not change the character of past transactions. On the other hand, the conquest and military occupation of foreign territory by the United States leaves it foreign country for revenue purposes." Davis' Note to Miller, Const. of U. S., 263, 264. Thayer, Cases Const. Law, 349, note. REFERENCES TO LOUGHBOROUGH v. BLAKE, IN MARSHALL MEMORIAL. VOL. II. Hon. John F. Follett, II, pp. 275, 276; Hon. William A. Ketcham, II, 294; Judge Bartlett Tripp, III, 157. I may add that in the recent argument of the Porto Rico cases in the Supreme Court, involving constitutional questions of the highest moment, among the decisions cibed on either side, the two on which, perhaps, the most stress has been laid are American Ins. Co. v. Canter and Loughborough v. Blake, both decided by Chief Justice Marshall. Hon. Henry Hitchcock, II, 505. That profound jurist who held, in Loughborough v. Blake (5 Wheaton, 317), that the power of Congress to levy and collect taxes, duties, imposts and excises, subject to the proviso that they must be uniform throughout the United States, "extends to all places over which the Government extends;" that the term "United States," as there employed, "is given to our great Republic, which is composed of States and Territories," and that the " District of Columbia or the territory west of the Missouri " (as it was in 1820 when that decision was made) "is not less within the United States than Maryland or Pennsylvania," cannot be fairly quoted or claimed as authority for the contention that the provision of the Constitution requiring all taxes, imposts and duties to be uniform throughout the United States should be so construed as to deprive a Territory subject to the Government of the United States of its protection and benefit. Judge Elmer B. Adams, II, 541. DATE WHEN CONSTITUTION TOOK EFFECTCONTRACT CLAUSE NOT RETROACTIVE. The next case- Owings v. Speed - fixes authoritatively, for the reasons below given by Chief Justice Marshall, that the Federal Constitution went into effect March 4, 1789, and determines also that the contractclause of the Constitution does not retroact so as to affect State laws passed prior to that date. Owings v. Speed and Others. February Term. 1820. [5 Wheaton's Reports, 420-421] The propositions of constitutional law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The present Constitution of the United States did not commence its operation until the first Wednesday in March, 1789 [March 4, 1789], and the provision in the Constitution that "no State shall make any law impairing the obligation of contracts" does not extend to a State law enacted before that day, and operating upon rights of property vested before that time. This case depends chiefly on the validity of an act of the Legislature of Virginia passed in the year 1788, and which was contended to be in violation of article 1, sec 353 Owings v. Speed. tion 10, of the Constitution of the United States, which forbids a State to pass any law impairing the obligation of contracts. Chief Justice Marshall, in his opinion on this part of the question, found that the act of the Virginia Legislature could not be in conflict with the Constitution of the United States because the operation of that great instrument did not commence until the first Wednesday in March, 1789, some months after the passage of the said act of Virginia, and consequently could not operate upon it. In the following opinion of the court1 we have all the facts relating to the points decided. Only that part of the opinion is given which bears on a constitutional question. MARSHALL, Chief Justice. This was an ejectment brought by the plaintiff in the Circuit How the case arose - Court of the United States for the Dis- The facts. trict of Kentucky, to recover a lot of ground lying in Bardstown. This town was laid off, in 1780, on a tract of land consisting of one thousand acres, for which, in 1785, a patent was issued by the Commonwealth of Virginia to Bard and Owings. In 1788 the Legislature of Virginia passed an act vesting one hundred acres, part 1 The court was constituted as follows: JOHN MARSHAL, Chief Justice, BUSHROD WASHINGTON, 1 WILLIAM JOHNSON, BROCKHOLST LIVINGSTON, Associate Justice& THOMAS TODD, GABRIEL DUVALL, JOSEPH STORY, Mr. B. Hardin appeared for the defendants. No counsel appeared for the plaintiff. 23 Marshall's Constitutional Opinions.34 354 of this tract, in trustees, to be laid off in lots, some of them to be given to settlers and others to be sold for the benefit of the proprietors. The cause depends mainly on the validity of this act. It is contended to be a violation of that part of the Constitution of the United States which forbids a State to pass any law impairing the obligation of contracts. Much reason is furnished by the record for presuming the consent of the proprietors to this law; but the Circuit Court has decided the question independently of this consent, and that decision is now to be reviewed. IBefore we determine on the construction of the ConDo the provisions of stitution in relation to a question of the Constitution of the this description, it is necessary to inUnited States operate on act of the Legisla- cnr te h fta ture of such date as qurewhete h provisionsofta the one in question? instrument apply to any acts of the State Legislatures which were of the date with that which it is now proposed to consider. This act was passed in the se.ssion of 1788. Did the Constitution of the United States then operate upon it? In September, 1787, after completing the great work in which they had been engaged, the convention resolved How and when the that the Constitution should be laid beConstitution of the fore the Congress of the United States, United States began to operate to be submitted by that body to conventions of the several States, to be convened by their respectivie Legislatures; and expressed the opinion that, as soon as it should be ratified by the conventions of nine States, Congress should fix a day on which electors should be appointed by the States, a day on which the electors should assemble to vote for President and Vice-President, "4ýand the time and place for commencing proceedings untler this Constitution." 355 355 Owings v. Speed. The conventions of nine States having adopted the Constitution, Congress, in September or October, 1788, passed a resolution in conformity with the opinions expressed by the convention, and appointed the first Wednesday in IMarch of the ensuing year as the day, and the then seat of Congress as the place "for commencing proceedingrs under the Constitution."1 Both governments could not be understood to exist at the same time. The new government did not commence until the old government expired. It is apparent that the government did not commence on the Constitution being ratified by the ninth State; for these ratifications were to be reported to Congress, whose continuing dm existence was recognized by the convention, andIdm who were requested to continue to exercise their powers for the purpose of bringing the new government into operation. In fact, Congress did continue to act as a government until it dissolved, on the first of November, by the successive disappearance of its members. It existed potentially until the second of March, the day preceding that on which the members of the new Congress were directed to assemble. The resolution of the convention might originally have sugg~ested. a doubt whether the government could be in operation for every purpose before the choice of a President; but this doubt has been long solved, and were it otherwise, its discussion would be useless, since it is apparent that its operation did not commence before the first Wednesday in Mlarch, 1789, before which time Virginia had passed the act which is alleged to violate the Constitution. Judgment affirmed, with costs. IMiller, Const. of the U. S. 91. Marshall's Constitutional Opinions. 356 NOTE. As to the contract clause of the Constitution see Dartmouth College Case, ante, p. 299, and notes. As to the contract clause in connection with the bankruptcy clause of the Constitution, see Sturges v. Crowninshield, ante, p. 226 and notes, and Ogden v. Saunders, post, and notes. "It may be well to say that a law of Virginia passed prior to March 4, 1789, which impaired a pre-existing contract, was, so far as respects the Federal Constitution, held to be a valid law, because made before the Constitution went into effect. Does the prohibition to the States, to pass any law impairing the obligation of a contract, involve the inference that Congress may pass such laws? Clearly not, except as to the grant of power to Congress to pass uniform bankrupt laws. The State, because of this prohibitory clause, cannot pass a bankrupt law, but Congress under the express grant of power may do so." Tucker, Const. of the U. S., II, 840. See Sturges v. Crowninshield, ante, p. 226, and notes. " That the Constitution never went into effect until March 4, 1789, and then only as to the States which had ratified it, is conclusively established." Tucker, Const. of the U. S., I, 269. CONSTITUTIONAL SUPREMACY OF THE SUPREME COURT OVER JUDGMENTS OF STATE COURTS DENYING FEDERAL RIGHTS. I. In the next case herein given --Cohens v. Virginia, 1821- Marshall delivered one of his most powerful, closely reasoned and luminous decisions. It is not easy to assign it a place inferior to the best and most characteristic of his great judicial judgments.' It reaffirmed the decision made in 1816 in Martin v. Hunter's Lessee,2 that under the Constitution and the Judiciary Act the Supreme Court of the United States had the power to reexamine the judgment of a State court when that judgment decided against any right claimed or defense set up under the Constitution, laws and treaties of the United States; and it decided the further point that the appellate jurisdiction of the Supreme Court extended, notwithstanding the Eleventh Amendment, to all such cases, whoever may be the parties, and even if one of the parties is a State of the Union and the other a citizen qf the same State. This decision put a quietus on the question of the revisory power of the Supreme Court over State court judgments denying what has come to be comprehensively styled "a Federal right," and that power is now in constant and undisputed exercise in the Supreme Court with the approval of the entire bar 1 Marshall Memorial, II, 230 (Shauck); Mr. Carson's Estimate, 256 -260; A Beacon Light, 540 (Adams); III, 120, 121 (Rose). 21 Wheaton, 304. Marshall's Constitutional Opinions. 358 and people. The decision in Cohens' case was not everywrhere immediately acquiesced in, and unsuccessful attempts were shortly afterwards made to amend the Constitution in this respect, and to repeal or restrict the twenty-fifth section of the Judiciary Act.' 1 ashl Memorial, I, 168. In 1822 Mr. Richard M. Johnson of Kentucky proposed an amnendment to the Constitution giving appellate jurisdiction to the Senate in any case in which a State was a party arising under the Constitution, laws and treaties of the United States. Under date of January 14, 1822, Mr. Webster writes to Justice Story: " Mr. Johnson, of Kentucky, has to-day, I learn, made a long speech in favor of his proposed amendment. He has dealt, they say, pretty freely with the Supreme Court. Dartmouth College, Sturges v. Crowninshield, et cetera, have all been demolished. To-morrow he is to pull to pieces the case of the Kentucky betterment law (Green v. Biddle). Then Governor Barbour is 1ýo annihilate Cohens v. Virginia " Webster, "1Private Correspondence," 1, 320. See Jefferson's Criticism of Cohens v. Virginia, "Jefferson's Writings" (Ford), X, pp. 229, 232; Van Santvoord, "Lives of the Chief Justices of the United States," 410 and note. "This exercise of appellate jurisdiction over the decisions of the State courts, in this class of cases, had given no special dissatisfaction in New Jersey, or Maryland, or New Hampshire, the States in which the most prominent cases of its application had arisen; but when in the cases of Cohens v. Virginia and Green v. Biddle, coming f iom. Virginia and Kentucky, the same power had been successfully invoked, State jealousy and pride were touched to the quick in two of their principal strongholds. The dissatisfaction culminated at this session of Congress in efforts to curtail the authority and limit the action of the Supreme Court. Mr. Webster's opposition [as Chairman of the House Judiciary Committee] was successful, and this class of cases was left under the provisions of the Judiciary Act of 1789 "(sec. 25). Curtis, "1Life of Webster," I, 215, 216. Judge Roane delivered one of the opinions of the Virginia Court of Appeals in 1814, which refused to obey the mandate of the Supreme Court of the United States (4 Munford (Va.) Reports, pp. 25 -54). and to him Jeffeison writes, March 9, 1821: "The great object of my fear is the Federal Judiciary. That body, 359 Cohens v. State of Virginia. The 25th section of the Judiciary Act (Act of September 24, 1789) is the section which authorizes the Supreme Court of the United States to re-examine, by way of appeal or writ of error, the decision of a State court when like gravity, ever acting, with noiseless foot and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them." Writings of Jefferson (Ford), X, 189. Jefferson writing to Pleasants, December 26, 1821, makes mention of Cohens' Case: "But you will have a more difficult task in curbing the Judiciary in their enterprises on the Constitution..... One remedy, I think, and indeed the best I can devise, would be to give future commissions to judges for six years (the senatorial term) with a reappointment ability by the President with the approbation of both Houses..... By this change of tenure a remedy would be held up to the States, which, although very distant, would probably keep them quiet. In aid of this, a more immediate effect would be produced by a joint protestation of both Houses of Congress, that the doctrines of the judges in the case of Cohens, adjudging a State amenable to their tribunal, and that Congress can authorize a corporation of the District of Columbia to pass any act which shall have the force of law within a State, are contrary to the provisions of the Constitution of the United States." Wiitings of Jefferson (Ford), X, 198, 199. In Jefferson's letter to Judge Johnson, June 12, 1823, referting to the case of Cohens v. Virginia, he says: "On the decision of the case of Cohens v. The State of Virginia, Judge Roane, under the signature of Algernon Sidney, wrote for the Enquirer a series of papers on the law of that case. I considered these papers maturely as they came out, and confess that they appeared to me to pulverize every word which had been delivered by Judge Marshall, of the extra-judicial part of his opinion; and all was extra-judicial, except the decision that the act of Congress had not purported to give the corporation of Washington the authority claimed by their lottery law, of controlling the laws of the States within the States themselves. But unable to claim that case, he could not let it go entirely, but went on gratuitously to prove that, notwithstanding the eleventh amendment of the Constitution, a Marshall's Constitutional Opinions. 360 the decision of such court is against some title, right or privilege specially set up and claimed by a party under the Constitution, laws or treaties of the United States. This provision is still in force without substantial change and constitutes section 709 of the present iRevised Statutes of the United States. 'State could be brought as a defendant to the bar of his court; and again, that Congress might authorize a corporation of its territory to exercise legislation within a State, and paramount to the laws of that State.... But the Chief Justice says ' there must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress,,or of two-thirds of the States. Let them decide to which they mean to give an authority claimed by two of their organs. And it has 'been the peculiar wisdom and felicity of our Constitution to have provided this peaceable appeal, where that of other nations is at once to force. I rejoice in the example you set of seriatim opinions." Writings of Jefferson (Ford), X, 229, 232. Mr. Wirt in 1823, when he was the Attorney-General under Mr. Monroe, magnanimously threw aside party and warmly urged the appointment of Chancellor Kent, though a Federalist, to a seat upon the Supreme Bench. Wirt's action in this matter entitles his name and memory to the respect of every true lawyer and patriotic citizen. From his noble letter to the President we extract the follow. ing concerning the Su preme Court, its great functions and the state of public opinion relating to certain of its decisions, including Cohens v. Virginia: "The appointment of a Judge of the Supremle Court is a national and not local concern. The great importance of that Court in the administration of the Federal Government begins to be generally understood and acknowledged. The local irritation at some of their decisions in paiticular quarters (as in Virginia and Kentucky for instance) are greatly overbalanced by the general approbation with which these same decisions have been received throughout the Union. The Constitution is the public property of the United States. It is now seen on every hand that the fuinctions to be performed by the Supreme Court of the United States are among the most difficult and perilous which are to be pei foi med 361 Cohens v. State of Virginia. The salutary effect of the principles laid down in the Hunter and Cohens cases, i. e., the supremacy of Federal rights, the power of the National courts finally to interpret the Constitution and laws of the United States, to protect and enforce Federal rights and powers, although denied by State legislation or State decisions, the effect of these cases in insuring uniformity of decision, in giving force and vigor to the Union, strengthening the bonds of the Constitution, and enabling the General Government to execute its duties and exercise its powers in every State and on every foot of National territory, is obvious to all, and is now no longer seriously controverted.' II. Justice Story's opinion in Martin v. Hunter's Lessee,2 above mentioned, affirming the existence of a revisory power in the Supreme Court over the judgments of the highest court of sovereign States, was not accepted as conclusive, and was by some State courts, and in certain quarters, earnestly opposed. A brief history of the case last mentioned is here proper as explaining the reason why Marshall considered it necessary in Cohens v. Virginia to examine and discuss the whole subject with such fullness of reasoning and illustration. In under the Constitution, the happiness of the whole nation, and even its peace as concerns other nations." Kennedy, " Life of William Wirt," II, 134. 1 The opinion in Cohens v. Virginia so firmly established the revisory jurisdiction of the Supreme Court over this class of State court decisions "that Mr. Justice Field, in an opinion announced by him in 1880, remarked that the question had passed beyond the region of discussion for more than half a century." Marshall Memorial, II, 557 (Address of Sanford B. Ladd). 2 1 Wheaton, 304. Marshall's Constitutional Opinions. 362 Hunter's Lessee v. Martin the Virginia Court of Appeals decided in favor of the validity of a grant of land made by Virginia in 1789 to Hunter as against the title claimed by the defendant under Lord Fairfax, and under the Treaty of Peace between the United States and Great Britain.' The case was clearly within the appellate jurisdiction of the Supreme Court of the United States under the language of section 25 of the Judiciary Act. That court took jurisdiction, heard the case, reversed the judgment of the Court of Appeals of Virginia, and issued its mandate in 1813 to the Virginia court directing it to enter a judgment in favor of Martin, the holder of the Fairfax title. In 1814 the Court of Appeals of Virginia considered the question whether it should obey the mandate of the Supreme Court of the United States, and reached the conclusion that it would decline to obey the mandate.' 1 Hunter v. Fairfax's Devisee, 1 Munford (Va.) Rep. 218-238 (1810); S. C., 4 Munford (Va.) Rep. 1 (1814). 2 The case is reported at length in Munford (Va.) Rep., vol. IV, pp. 1-59 (1814). The following is the text of the order of the Court of Appeals of Virginia declining obedience to the mandate of the Supreme Court of the United States: "The court is unanimously of opinion that the appellate 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 25th 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 wiit of error in this cause was improvidently allowed under the authority of that act; that the proceedings thereon in the Supreme Court were coram non judice, in relation to this court, and that obedience to its mandate be declined by the court." Opinions, seriatim, of marked ability were delivered by Judges Cabell, Brooke, Roane and Fleming, the other member of the court, 363 Cohens v. State of Virginia. This conclusion destroys the appellate *judicial power of the Supreme Court over judgments of the State courts deciding against rights claimed under the Constitution, laws and treaties of the United States; m~akes each State tribunal the final interpreter of Federal rights; destroys all possibility of uniformity of decision, and strips the Supreme Court of its most useful function, that of peaceably settling the competing claims and pretensions of the State and National Governments. Marshall justly declared that such questions were of "CCgreat magnitude and may be truly said vitally to affect the Union." This solemn refusal of the Virginia Court of Appeals to obey the judgment of the Supreme Court of the U-nited States attracted the serious attention of the country. A second appeal (by writ of error) was taken from this judgment of refusal, which appeal was from "a peculiar circumstance" not stated., being unable to sit. The substantial ground of this decision of the Virginia court, which at the present day seems so bold and surprising, is the extreme State's rights view of the Constitution then so prevalent in certain sections, viz.: That the Federal and State governments are each sovereign; that each government must act by its own organs; that the Federal and State courts, though not foreign, are yet separate, distinct from and independent of each other, and that neither can act compulsively upon the other; that if this court should obey the mandate of the Supreme Court it must either act as Federal or State judges; that State judges cannot be made Federal judges without their consent and without commissions; that as State judges we cannot be dictated to by any court except a superior appellate court, and the United States Supreme Court cannot, under the Constitution, be invested with appellate jurisdiction over the State courts, even as respects Federal rights and questions, and consequently the 25th section of the Judiciary Act, which, by its terms, undertakes to confer such jut isdiction on the Supreme Court, is in conflict with the Constitution and void-and for these reasons the court declines to obey the mandate of the Supreme Court. Marshall's Constitutional Opinions.36 364 decided by the Supreme Court in 1816, wherein Mr. Justice Story delivered the opinion of the court,' reasserting the revisory appellate power of the Supreme Court over the State court judgments whenever such judgments decided agpainst a right claimed under the Constitution, laws or treaties of the United States. Any further actual conflict with the Court of Appeals of Virginia was avoided by the Supreme Court itself adjudging and declaring void the judgment of the Virginia, Court of Appeals and adjudging and declaring valid the judgament of the lower Virginia court which held in favor of Fairfax-treaty title.' Mr. Justice Story was appointed a justice of the Supreme Court in 1811 by President Madison. His political affiliations were with the IRepublicans and not with the Federalists. In 1816 Mr. Justice Story gave the opinion of the Supreme Court in Martin v. Hunter's Lessee. Speaking of his father and of this decision, William W. Story makes these interesting observations: "This was the first great constitutional judgment delivered by my father. The views of the party to which he belonged were widely different from those entertained by the illustrious Chief Justice Marshall. Upon taking his seat on the Bench my father devoted himself to this branch of the law [Constitutional Law] and the result was a cordial adherence to the views of Marshall, whom he considered then and ever afterwards as the expounder of the true principles of the Constitution. Nor did this indicate so 11 Wheaton, 804. 21 Wheaton, 302. 3 "Life and Letters of Joseph Story," by William W. Story (Little & Brown), 1851, Vol. 1, 276, 365 365 Gohens v. State of Virginia. much a change as a formation of opinion. As the doctrinles in Martin v. Hunter's Lessee were at all points opposite to those of Mr. Jefferson and the iRepublicans, my father was exposed to the accusation of being a renegade of party. This neither troubled nor influenced him." 1 Opinions on great and especially on novel constitutional subjects were then almost uniformly pronounced by the Chief Justice. Why the opinion in Martin v. Hunter's Lessee was given by Mr. Justice Story is perhaps not definitely known. Mr. Justice Gray's conjecture is that it was from feelings of delicacy towards the judges of the Court of Appeals of his native State.2 Mr. Henry Adams thinks it was a stroke of policy on Marshall's part.' As neither motive would have been at all discreditable or improper, it is scarcely worth while to pursue an inquiry which is more curious than important. Cohens v. State of Virginia. February Term, 1821. [6 Wheaton's Reports, 264-447.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The twenty-fifth section of the Judiciary Act is a constitutional and valid law. It applies to and includes a case in which a State proceeds in its own court, by 1 After 1811 a majority of Marshall's associates on the Bench held their appointment from administrations of tihe party opposed to that to which lie had belonged." Marshall Memorial, 1, 519 (John Bassett Moore); Id., 11, 479, 480 (Frederick W. Lehmann). 2 Mrhl Memorial, 1, 68, 69; 11, 51 (Justice Brown). 3 Marshall Memorial, 11, 20-6 (Address of Hampton L. Carson). Marshall's Constitutional Opinions. 366 indictment, against one of its citizens who attempts to defend under an act of Congress; and this court, upon the writ of error, will determine whether or no the act of Congress constituted a defense. The charter of the city of Washington did not authorize the corporation to enforce the sale of lottery tickets in States whose laws prohibited such sales. P. J. and M. J. Cohens were indicted, under an act of Virginia, for selling lottery tickets; they defended under an act of Congress, but judgment was given against them. An appeal to the higher Virginia courts being refused, because no higher court had jurisdiction of the subjectmatter, they sued out a writ of error under the 25th section of the Judiciary Act to the Supreme Court of the United States. The attorney for Virginia moved to dismiss this writ on the ground of want of jurisdiction in the Supreme Court.' Upon this motion Chief Justice Marshall delivered the opinion of the court as follows: MARSHALL, Chief Justice. This is a writ of error to a judgment rendered in the court of hustings for pinion the borough of Norfolk, on an information for selling lottery tickets contrary to an act of the LegislaI The court was constituted as follows: JOHN MARSHALL, Chief Justice BUSHROD WASHINGTON, WILLIAM JOHNSON, BROCKHOLST LIVINGSTON, THOMAS TODD, Aso Jtie GABRIEL DUVALL, JOSEPH STORY, J Justice Washington was absent on account of illness during this term. Mr. D. B. Ogden and Mr. William Pinkney appeared for 367 Cohens v. State of Virginia. ture of Virginia. In the State court the defendant claimed the protection of 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 Congress on which the defendant relied, and concludes in these words: Agreed statement of 5 facts "If upon this case the court shall be of opinion that the acts of Congress before mentioned were valid, and on the true construction of those acts the lottery tickets sold by the defendants as aforesaid might lawfully be sold within the State of Virginia, notwithstanding the act or statute of the General Assembly of Virginia prohibiting such sale, then judgment to be entered for the defendants. And if the court should be of opinion that 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 defendants are guilty, and that the Commonwealth recover against them one hundred dollars and costs." Judgment was rendered against the defendants; and the court in which it was rendered being the highest court of the State in which the cause was cognizable, plaintiff in error. Mr. Barbour and Mr. Smyth appeared for defendant in error. The case of Cohens v. Virginia was afterwards argued on the merits and a brief opinion given by the Chief Justice (6 Wheaton, 440) to the effect that the charter of the city of Washington granted by Congress did not authorize the city to force the sale of lottery tickets in States where such sales were prohibited by the laws of such States, and consequently the charter of the city was no defense to an indictment for a violation of the statutes of Virginia. The opinion on the merits is not given, since it related to no constitutional point. Marshall's co12slitaiortal Opiniolis.36 368 the record has been brought into this court by writ of error. The defendant in error moves to dismiss this writ for want of jurisdiction. In support of this motion three points have been made, and arogued with the ability which the Points made by the. b R~ate. on motion to importance of the question merits. These, dismiss writ of error. points are1st. That a State is a defendant. 2d. That no writ of error lies from this court to a State court. 3d. The third point has been presented in different forms by the gentilemen 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 jurisdiction was not given by the Judiciary Act. The court has bestowed 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 judgment. The questions presented to the court by the two first points made at the bar are of great magnitude, and may be Questions presented of truly said vitally to affect the Union. great mnagnitude 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 peaceably, and by 369 Cohens v. State of Virginia. 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 submittingy 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, orif a mischief, is irremediable. 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 to perform that task which the American people have assigned to the judicial department. 1st. The first question to be considered is, whether the jurisdiction of this court is excluded Jurisdiction of court in sisbetween a State by the character of the parties, one of and its citizens. them being a State, and the other a citizen of that State. The second section of the third article of the Constitution defines the extent of the judicial power of the Uinited States. Jurisdiction is given Extent of judicial to the courts of the Union in two power of the United States defined in the classes of cases. In the first, theirju Constitution. risdiction depends on the character of the cause, whoever may be the parties. This class comprehends "all cases 24 Marshall's Constitutional Opinions. 370 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 Where jurisdiction depends on character of all the cases described, without making the cause 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 Where jurisdiction depends on character of this are comprehended "controversies the parties between two or more States, between a State and citizens of another 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 parties have a constitutional right to come into the courts of the Union.1 1 The reader should remember in reading the present opinion of Chief Justice Marshall, that, as we have seen (ante, pp. 362-363, note), the Court of Appeals of Virginia, in the case of Hunter v. Fairfax's Devisee, 4 Mumford, Virginia Rep. 1 (1814), refused obedience to the mandate of the Supreme Court of the United States on the express ground that although the twenty-fifth section of the Judiciary Act of Congress expressly extended the appellate jurisdiction of the Supreme Court of the United States to the State courts where the State courts denied any constitutional or Federal right, yet that in the opinion of the Court of Appeals of Virginia this provision of the Judiciary Act was void because the Constitution of the United States, by its true construction, did not extend the appellate power of the courts of the Union over the judgments of the State courts in any case whatsoever. 371 Coizens v. State of Virginia. The counsel for the defendant in error have stated that the cases which arise under the Constitution must grow out of those provisions which are capable of selfexecution; 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 arisingr under a law, for the sake of precision in the application of this argrument, these propositions will not he controverted. If it be to maintain that a case, arising under the Constitu-Acaeilworqut tion or a law, must be one in which a arises under the Constitution or a law of party comes into court to demand some- the United States when its correct decision dething, conferred on him by the Consti- tedson tecnsrc ntio feither. tution or a law, we think the construction too narrow. A case in law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States whenever its correct decision depends on the construction of either. Congress seems to have intended to give its own construction of this part of the Constitution in the twenty-fifth section of the Judiciary Act; and we perceive no reason to depart from that construction. The jurisdiction of the court, then, being, extended by Marshall's Constitutional Opinions.37 372 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 sovereign, independent State is not suable except by its own consent. This general proposition will not be controverted. But Conentofa Satetoits consent is not requisite in each parbe sued may be given tclrcae tmay b ie nagn in geerl lw. eral law. And if a State 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 suied, 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, A close and firm union have believed a close and firm union to of the States essential b seta o lbryadt hi to the liberty and haap-besenilt their lbryadt hi piness of the people 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 ~373 Cohens v. Stale of Virginia. longs to independent States. Under the influence of this opinion, and thus instructed by experience, the American people, in the convention of their respective States, adopted the present Constitution. If it could be doubted whether from its nature it were not supreme in all cases where it isThCosiuonet, -empowered to act, that doubt would the supreme law of the 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 authority of the United States, shall be the supreme law of the laud; and the Judges in every State shall be bound thereby; anything in the Constitution or laws of any State to the contrary notwithstanding." This is the authoritative langruagre of the American people; and, if gentlemen please, of the Characteristic distincAmercan tats. I mars wth lnestionhbeofenthe UnonAmercanStaes.It mrks wih lnesernmenLeof the Unontoo strong to be mistaken, the charac- and those of the States. teristic distinction between the Government of the Union and those of the States. The General Government, thoug-h limited as to its objects, is supreme with respect to those objects. This principle is a part of the Constitution; and if there be any who deny its necessity, none can deny its authority. To this supreme government ample powers are confided; and 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 defense, promote the general welfare, and secure the blessing~s of liberty to themselves and their posterity." Marshall's Constitutional Opinions.37 374 With the ample powers confided to this supreme govLimitations on the sov- ernment for these interesting purposes ereignty of the States. are connected many express and important limitations on the sovereignty of the States, which are made for the same purposes. The powers of the -Union on the great subjects of war, peace and commerce, and on many others, 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, no other power is conferred on Congress than a conservative power to maintain the principles 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 authorized to decide all cases of every description arising under the Constitution or laws of the United States. From this general grant of jurisdiction no A case arising under the Constitution and exception i made of those cases in laws of the United States is cognizable in which a State may be a party. When the courts of the Union whoever may be the we consider the situation of the govpartiesermient of the Union and of a State in relation to each other, the nature of our Constitution, the subordination of the State governments to that Constitution, the great purpose for which jurisdiction over all cases arisingr under the Constitution and laws of the United States is confided to the judicial department, are we at liberty to insert in this general grant an exception of those cases in which a State may be a party? Will the spirit of the Constitution justify this attempt to control its words? We think it will not. We think a case 375 Cohens v. State of Virginia. arising under the Constitution or laws of the United States is cognizable in the courts of the Union, whoever may be the parties to that case. Had any doubt existed with respect to the just construction of this part of the section, that doubt would have been removed by the enumeration of those cases to which the jurisdiction of the Federal courts is extended in consequence of the character of the parties. In that enumeration we find 1" controversies between two or more States, between a State and citizens of another State," " and between a State and foreign States, citizens, or subjects." One of the express objects, then, for which the judicial department was established is the decision of controversies between States and between a State and individuals. The mere circumstance that a Merecircumstancethat State is a party gives jurisdiction to the a State is a partyegives jurisdiction to the court. How, then, can it be contended court. that the very same instrument, in the very same section, should be so construed as that this same circumstance should withdraw a case from the jurisdiction of the court, where the Constitution or laws of the United States are supposed to have been violated? The Constitution gave to every person having a claim upon a State a right to submit his case to the court of the Nation. However unimportant his claim might be, however little the community might be interested in its decision, the framers of our Constitution thought it necessary, for the purposes of justice, to provide a tribunal as superior to influence as possible, in which that claim might be decided. Can it be imagined that the same persons considered a case involving the Constitution of our country and the majesty of the laws, questions in which every American citizen Marshall's Constitutional Opinions. 376 must be deeply interested, as withdrawn from this tribunal because a State is a party.? While weighing arguments drawn from the nature of government, and from the general spirit of an instrument, and urged for the purpose of narrowing the conThe judicial power of struction which the words of that ingovernment must be strument seem to require, it is proper co-extensive with the legislative. to place in the opposite scale those principles, drawn from the same sources, which go to sustain the words in their full operation and natural import. One of these, which has been pressed with great force by the counsel for plaintiffs in error, is that the judicial power of every well-constituted government must be co-extensive with the legislative, and must be capable of deciding every judicial question which grows out of the Constitution and laws. If any proposition may be considered as a political axiom, this, we think, may be so considered. In reasoning upon it as an abstract question, there would, probably, exist no contrariety of opinion respecting it. Every argument, proving the necessity of the department, proves also the propriety of giving this extent to it. We do not mean to say that the jurisdiction of the courts of the Union should be construed to be co-extensive with the legislative merely because it is fit that it should be so; but we mean to say that this fitness furnishes an argument in construing the Constitution which ought never to be overlooked, and which is most especially entitled to consideration when we are inquiring whether the words of the instrument which purport to establish this principle shall be contracted for the purpose of destroying it. The mischievous consequences of the construction contended for on the part of Virginia are also entitled to 377 377 Cohens v. St ate of Virqtm'.-~ great consideration. It would prostrate, it has been said, the government and its laws at the feet of every State in the Union. And would not this be its effect? What power of the government could be exe- Supreme power of the cuted by its own means in any State courts of the United States in the execution disposed to resistit execution by a of their laws essential tothe welfare of the course of legislation? The laws must Uin be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be, at any time, arrested by the will of one of its members. Each member will possess a veto on the will of the whole. The answer which has been given to this argument does not deny its truth, but insists that confidence is reposed, and may be safely reposed, in the State institutions: and that, if they shall ever become so insane or so wicked as to seek the destruction of the government, they may accomplish their object by refusing to perform the functions assigned to them. We readily concur with the counsel for the defendant in the declaration that the cases which have been put of direct legislative resistance for the purpose of opposing the acknowledged powers of the government are ex.treme cases, and in the hope that they will never occur; but we cannot help believing that a general conviction of the total incapacity of the government to protect itself and its laws in such cases would contribute in no inconsiderable degree to their occurrence. Let it be admitted that the cases which have been put are extreme and improbable, yet there are gradations of opposition to the laws, far short of those cases, which Marshall's Constitutional Opinions. 378 might have a baneful influence on the affairs of the nation. Different States may entertain different opinions on the true construction of the constitutional powers of Congress. We know that at one time the assumption of the debts contracted by the several States during the war of our revolution was deemed unconstitutional by some of them. We know, too, that at other times certain taxes imposed by Congress have been pronounced unconstitutional. Other laws have been questioned partially, while they were supported by the great majority of the American people. We have no assurance that we shall be less divided than we have been. States may legislate in conformity to their opinions, and may enforce those opinions by penalties. It would be hazarding too much to assert that the judicatures of the States will be exempt from the prejudices by which the Legislatures and people are influenced, and will constitute perfectly impartial tribunals. In many States the judges are dependent for office and for salary on the will of the Legislature. The Constitution of the United States furnishes no security against the universal adoption of this principle. When we observe the importance which that Constitution attaches to the independence of judges, we are the less inclined to suppose that it can have intended to leave these constitutional questions to tribunals where this independence may not exist, in all cases where a State shall prosecute an individual who claims the protection of an act of Congress. These prosecutions may take place even without a legislative act. A person making a seizure under an act of Congress may be indicted as a trespasser, if force has been employed, and of this a jury may judge. How extensive may be the mischief, if the first decisions in such cases should be final! 379 379 Cohens v. Stale of Virginia. These collisions may tak~e place in times of no extraordinary commotion. Put a Constitution is framed for ages to come, and is designed to ap- Every well-ordered proach immortality as nearly as human government must contain within itself the institutions can approach it. Its course means of securingth execution of its own cannot always be tranquil. It is ex- laws. posed to storms and tempests, and its framers must be unwise statesmen indeed, if they have not provided it, as far as its nature will permit, with the means of selfpreservation from the perils it may be destined to encounter. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws against other dangers than those which occur every day. Courts of justice are the means most usually employed; and it is reasonable to expect that a government should repose on its own courts, rather than on others. There is certainly nothing in the circumstances under which our Constitution was formed, nothing in the history of the tim~es, which would justify the opinion that the confidence reposed in the States was so implicit as to leave in them and their tribunals the power of resisting or de-_ feating, in the form of law, the legitimate measures of the Union. The requisitions of Con- Requisitions of Congress, under the Confederation, were as gress habitually disregarded under the CJonconstitutionally obligatory as the laws federation. enacted by the present Congress. That they were habitually disregarded is a fact of universal notoriety. With the knowledge of this fact, and under its full pressure, a convention was assembled to change the system. Is it so improbable that they should confer on the judicial department the power of construing the Constitution and laws of the Union in every case, in the last resort, and Marshall's Gonstitutional Opinions.38 380 of preserving them from all violation from every quarter, so far as judicial decisions can preserve them, that this improbability should essentially affect the construction of the new system? We are told, and we are truly told, that the great change which is to give efficacy to the present system is its ability to act on individuals directly, instead of acting through the instrumentality of State governments. But ought not this ability, in reason and sound policy, to be applied directly to the protection of individuals employed in the execution of the laws, as well as to their coercion? Your laws reach the individual without the aid of any other power; why may they not protect him from punishment for performing his duty in executing them? The counsel for Yirg'inia endeavor to obviate the force Power of the States to o these argumnsbsaigttte destroy the Union. dangers they suggest, if not imaginary, are inevitable; that the Constitution can make no provision against them; and that, therefore, in construing that instrument they ought to be excluded from our consideration. This state of things, they say, can not arise until there shall- be a disposition so hostile to the present political system as to produce a determination to destroy it; and when that determination shall be produced, its effects will not be restrained by parchment stipulations. The fate of the Constitution will not then depend on judicial decisions. But, should no appeal be made to force, the States can put an end to the government by refusingr to act. They have only not to elect Senators, and it expires without a struggle. It is very true that, whenever hostility to the existing system shall become universal, it will be also irresistible. The people made the Constitution and the people can 381 Cohens v. State of Virginia. unmake it. It is the creature of their will, and lives only by their will. But this supreme and Supremeand irresistiirresistible power to make or to un- ble po^werto make or to unmake the Constimake resides only in the whole body tohe wholeibodynof th of the people, not in any subdivision of people. them. The attempt of any of the parts to exercise it is usurpation, and ought to be repelled by those to whom the people have delegated their power of repelling it. The acknowledged inability of the government, then, to sustain itself against the public will, and by force, or otherwise, to control the whole nation, is no sound argument in support of its constitutional inability to preserve itself against a section of the nation acting in opposition to the general will. It is true that if all the States, or a majority of them, refuse to elect Senators, the legislative powers of the Union will be suspended. But if any one State shall refuse to elect them, the Senate will not on that account be the less capable of performing all its functions. The argument founded on this fact would seem rather to prove the subordination of the parts to Notin a single State. the whole than the complete independence of any one of them. The framers of the Constitution were indeed unable to make any provisions which should protect the instrument against a general combination of the States, or of the people, for its destruction; and, conscious of this inability, they have not made the attempt. But they were able to provide against the operation of measures adopted in any one State, whose tendency might be to arrest the execution of the laws; and this it was the part of true wisdom to attempt. We think they have attempted it. It has been also urged, as an additional objection to Marshall's Constitutional Opinions.38 382 the jurisdiction of the court, that cases between a State and one of its own citizens do not come within the general scope of the Constitution; and were obviously never intended to be made cognizable in the Federal courts. The State tribunals might be suspected of partiality in cases between itself, or its citizens, and aliens, or the citizens of another State, but not in proceedings by a State against its own citizens. That jealousy which might exist in the first case could not exist in the last, and therefore the judicial power is not extended to the last. This is very true, so far as jurisdiction depends on the Judicial power of the Character of the parties; and the arguUnion extends to all cases arising under the ment would have great force if urged Constitution and laws of the United States ir- toprv that this court could not respective of citizen- prv ship of the parties establish the demand of a citizen upon his State, but is not entitled to the same force when urgred to prove that this court cannot inquire whether the Constitution or laws of the United States protect a citizen from a prosecution instituted against him by a State. If jurisdiction depended entirely on the character of the parties, and was not given where the parties have not an original right to come into court, that part of the second section of the third article, which extends the judicial power to all cases arising under the Constitution and laws of the United States, would be mere surplusage. It is to give jurisdiction where the character of the parties would not give it that this very important part of the clause was inserted. It may be true that the partiality of the State tribunals, in ordinary controversies be.. tween a State and its citizens, was not apprehended, and therefore the judicial power of the Union was not extended to such cases; but this was not the sole nor the greatest object for which this department was created. 383 Gohens v. State of Virginia. A more important, a much more interesting object, was the preservation of the Constitution and laws of the United States, so far as they can be preserved by judicial authority; and therefore the jurisdiction of the courts of the Union was expressly extended to all cases arising under that Constitution and those laws. If the Constitution or laws may be violated by proceedings instituted by a State against its own citizens, and if that violation may be such as essentially to affect the Constitution and the laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which extends the judicial power of the Union to all cases arising under the Constitution and laws? After bestowing on this subject the most attentive consideration, the court can pe 'rceive no reason founded on the character of the parties for introducing an exception which the Constitution has not made; and we think that the judicial power, as originally given, extends to all cases arisingr under the Constitution or a law of the United States, whoever may be the parties. It has been also contended that this jurisdiction, if given, is original, and cannot be exercised in the appellate form. The words of the Constitution are, "1in all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned the Supreme Court shall have appellate jurisdiction."~ This distinction between original and appellate jurisdiction excludes, we are told, in all cases, the exercise of the one where the other is given. Marshall's Gondi/utional Opinions.38 384 The Constitution gives the Supreme Court original juDistinction between risdiction in certain enumerated cases, original and ape1t n gvsi pellatejuidconnal jurisdiction of the Fed- adgvsi pelt uidcini l eral courts. others. Among those in which jurisdiction must be exercised in the appellate form are cases arising under the Constitution and laws of the United States. These provisions of the Constitution are equally obligatory, and are to be equally respected. If a State be a party, the jurisdiction of this court is original; if the case arise under a Constitution or a law, the jurisdiction is appellate. But a case to which a State is a party may arise under the Constitution or a law of the United States. What rule is applicable to such a case? What, then, becomes the duty of the court? Certainly, we think, so to construe the Constitution as to give effect to both provisions, as far as it is possible to reconcile them, and not to permit their seeming repugnancy to destroy each other. We must endeavor so to construe them as to preserve the true intent and meaning of the instrument. In one description of cases the jurisdiction of the court is founded entirely on the character of the parties; Idem. and the nature of the controversy is not contem.plated by the Constitution. The character of the parties is everything, the nature of the case nothing. In the other description of cases the jurisdiction is founded entirely on the character of the case, and the parties are not contemplated by the Constitution. In these the nature of the case is everything, the character of the parties nothing. When, then, the Constitution declares the jurisdiction, in cases where a State shall be a party, to be original, and, in all cases arising under the Constitution or a law, to be appellate,- the conclusion seems irresistible that its framers designed to include in the first class 385 385 Goliens v. Stake of Virgini~a. those cases in which jurisdiction is given because a State is a party; and to include in the second those in which jurisdiction is given because the case arises under the Constitution or a law. This reasonable construction is rendered necessary by other considerations. That the Constitution or a low of the United States is involved in a case, and makes a part of it, may appear in the progress of a cause in which the dm courts of the Union, but for that circumstance, would have no jurisdiction, and which, of consequence, could not originate in the Supreme Court. In such a case the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause, dividing the power of the Supreme Court, in such manner as, in a considerable degree, to defeat the power itself. All must perceive that this construction can be justified only where it is absolutely necessary. We do not think the article under consideration presents that necessity. It is observable that in this distributive clause no negative words are introduced. This observation is not made for the purpose Marbry v. Madison of contending that the Legislature may "Ccapportion the judicial power betwxeen the supreme and inferior courts according to its will." That would be, as was said by this court in the case of Marbury v. Madison, to render the distributive clause " mere surplusage," to make it "1form. without substance." This cannot, therefore, be the true construction of the article. But althoug:Yh the absence of negative words will not authorize the Legislature to disregard the distribution of the power previously granted, their absence will justify 25 Marshall's Constitutional Opinions. 386 a sound construction of the whole article, so as to give every part its intended effect. It is admitted that "affirmative words are often in their operation negative of other objects than those affirmed;" and that, where "a negative or exclusive sense must be given to them, or they have no operation at all," they must receive that negative or exclusive sense. But where they have full operation without it, where it would destroy some of the most important objects for which the power was created, then, we think, affirmative words ought not to be construed negatively. The Constitution declares that in cases where a State is a party the Supreme Court shall have Original and appellate jurisdiction of the Fed- original jurisdiction; but does not say eral courts I that its appellate jurisdiction shall not be exercised in cases where, from their nature, appellate jurisdiction is given, whether a State be or be not a party. It may be conceded that, where the case is of such a nature as to admit of its originating in the Supreme Court, it ought to originate there; but where from its nature it cannot originate in that court, these words ought not to be so construed as to require it. There are many cases in which it would be found extremely difficult, and subversive of the spirit of the Constitution, to maintain the construction that appellate jurisdiction cannot be exercised where one of the parties might sue or be sued in this court. The Constitution defines the jurisdiction of the Supreme Court, but does not define that Rational construction of provision of the of the inferior courts. Can it be afConstitution. firmed that a State might not sue the citizen of another State in a Circuit Court? Should the Circuit Court decide for or against its jurisdiction, should 387 Cohens v. State of Virginia. it dismiss the suit, or give judgment against the State, might not its decision be revised in the Supreme Court? The argument is that it could not; and the very clause which is urged to prove that the Circuit Court could give no judgment in the case is also urged to prove that its judgment is irreversible. A supervising court, whose peculiar province it is to correct the errors of an inferior court, has no power to correct a judgment given without jurisdiction; because, in the same case, that supervising court has original jurisdiction. Had negative words been employed, it would be difficult to give them this construction, if they would admit of any other. But without negative words this irrational construction can never be maintained. So, too, in the same clause, the jurisdiction of the court is declared to be original "in cases afJurisdiction in cases fecting ambassadors, other public min- affecting ambassadors, etc, original. isters, and consuls." There is, perhaps, no part of the article under consideration so much required by national policy as this; unless it be that part which extends the judicial power "to all cases arising under the Constitution, laws, and treaties of the United States." It has been generally held that the State courts have a concurrent jurisdiction with the Federal courts in cases to which the judicial power is extended, unless the jurisdiction of the Federal courts be rendered exclusive by the words of the third article. If the words, "11 to all cases," give exclusive jurisdiction in cases affecting foreign ministers, they may also give exclusive jurisdiction, if such be the will of Congress, in cases arising under the Constitution, laws, and treaties of the United States. Now suppose an individual were to sue a foreign minister in a State court, and that court were to main Marshall's Constitutional Opinions.38 388 tain its jurisdiction and render judgment against the miniJurisdiction appellate ister, could it be contended that this in case if brought 'in court would be incapable of revisinog State court againstn ambassador, etc. such judgment because the Constitution had given it original jurisdiction in the case? If this could be maintained, then a clause, inserted for the purpose of excluding the jurisdiction of all other courts than this, in a particular case, would have the effect of excluding the jurisdiction of this court in that very case, if the suit were to be brought in another court, and that court were to assert jurisdiction. This tribunal, according to the argument which has been urged, could neither revise the judgment of such other court, nor suspend its proceedings; for a writ of prohibition, or any other similar writ, is in the nature of appellate process. Foreign consuls frequently assert in our prize courts Suits in Prize courts by the claims of their fellow-subjects. foreign consuls, juris- These suits are maintained by them as diction of Supreme Court appellate. consuls. The appellate power of this court has been frequently exercised in such cases, and has never been questioned. It would be extremely mischievous to withhold its exercise. Yet the consul is a party on the record. The truth is, that, where the words confer only appellate jurisdiction, original jurisdiction is most clearly -not given; but where the words admit of appellate jurisdiction, the power to take cognizance of the suit originally does not necessarily negative the power to decide upon it on an appeal, if it may originate in a different court. It is, we think, apparent, that to give this distributive Article in question clause the interpretation contended for, must be construed 50 to gv to its affirmative words a negas to promote its gen- gv eral inptentiotn. ative operation in every possible case, would in some instances defeat the obvious intention of 389 389 Gohens v. Stale of Virginia. the article. Such an interpretation would not consist with. those rules which from time immemorial have guided courts in their construction of instruments brought under their consideration. It must therefore be discarded. Every part of the article must be taken into view, and that construction adopted which will consist with its words and promote its general intention. The court may imply a negative from affirmative words, where the implication promotes, not where it defeats, the intention. If we apply this principle, the correctness of which we believe will not be controverted, to the istibutve laus uner cnsier-Construction of distribthe istibutve laus uner cnsier-utive clause in Constitution - Original and ation, the result, we think, would be appellate jut sdictionthis: the original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the Federal courts; not to those cases in which an original suit might not be instituted in a Federal court. Of the last description is every case between a State and its citizens, and, perhaps, every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction. In every other case, that is, in every case to which the judicial power extends, and in which original jurisdiction is not expressly given, that judicial power shall be exercised in the appellate, and only in the appellate form. The original jurisdiction of this court cannot be enlarged, but its appellate jurisdiction may be exercised in every case cognizable, under the third article of the Constitution, in the Federal courts, Marshall's Constitutional Opinions. 390 in which original jurisdiction cannot be exercised; and the extent of this judicial power is to be measured, not by giving the affirmative words of the distributive clause a negative operation in every possible case, but by giving their true meaning to the words which define its extent. The counsel for the defendant in error urge, in opposition to this rule of construction, some Dictain Marbury v. dicta of the court in the case of MarMadison. bury v. Madison. 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 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 case decided, but their possible bearing on all other cases is seldom completely investigated. In the case of Marbury v. Madison, the single question before the court, so far as that case Question in Marbury v. Madison whether can be applied to this, was whether the Legislature could give original jurisdiction to Legislature could give this court oriogSupreme Court. inal jurisdiction in a case in which the Constitution had clearly not given it, and in which no doubt respecting the construction of the article could possibly be raised. The court decided, and, we think, very properly, that the Legislature could not give original jurisdiction in such a case. But in the reasoning of the court in support of this decision some expressions are used which go far beyond it. The counsel for Marbury 291 Cohens v. State of Virginia. had insisted on the unlimited discretion of the Legislature in the apportionment of the judicial power; and it is against this argument that the Original and appellate reasoning of the court is directed. juridiction--Conzn struction of ConstituThey say that, if such had been the in- tion. tention of the article, "it would certainly have been useless to proceed farther than to define the judicial power, and the tribunals in which it should be vested." The court says that such a construction would render the clause, dividing the jurisdiction of the court into original and appellate, totally useless; that "affirmative words are often, in their operation, negative of other objects than those which are affirmed; and in this case (in the case of Marbury v. Madison) a negative or exclusive su:onse must be given to them, or they have no operation at all." "It cannot be presumed," adds the court, "that any clause in the Constitution is intended to be without effect; and therefore such a construction is inadmissible, unless the words require it." The whole reasoning of the court proceeds upon the idea that the affirmative words of the clause, giving one sort of jurisdiction, tNegative operation of zn affirmative words. m ust imply a negative of any other sort of jurisdiction, because otherwise the words would be totally inoperative; and this reasoning is advanced in a case to which it was strictly applicable. If in that case original jurisdiction could have been exercised, the clause under consideration would have been entirely useless. Having such cases only in its view, the court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its Marshall's Constitutional Opinions. 392 principle. The reasoning sustains tWe negative operation of the words in that case, because otherwise the clause would have no meaning whatever, and because such operation was necessary to give effect to the intention of the article. The effort now made is to apply the conclusion to which the court was conducted by that reasoning in the particular case, to one in which the words have their full operation when understood affirmatively, and in which the negative or exclusive sense is to be so used as to defeat some of the great objects of the article. To this construction the court cannot give its assent. The general expressions in the case of Marbury v. A[adison must be understood with the limitations which are given to them in this opinion; limitations which in no degree affect the decision in that case, or the tenor of its reasoning-. The counsel who closed the argument put several cases for the purpose of illustration, which he cases arising under supposed to arise under the ConstituConstitution but without jurisdiction of the court--Illustrations of tion, and yet to be apparently without counsel. the jurisdiction of the court. Were a State to lay a duty on exports, to collect the money and place it in her treasury, could the citizen who paid it, he asks, maintain a suit in this court against such State to recover back the money? Perhaps not. Without, however, deciding such supposed case, we may say that it is entirely unlike that under consideration. The citizen who has paid his money to his State under a law that is void is in the same situation with every other person who has paid money by mistake. The law raises an assumpsit to return the money, and it is upon that assumpsit that the action is to be maintained. To refuse 393 Cohens v. State of Virginia. to comply with this assumTpsit may be no more a vio!ation of the Constitution than to refuse to comply with any other; and as the Federal courts never had jurisdiction over contracts between a State Suit to compel citizen and its citizens, they may have none to ay export duty 1evoed by a State; jurisover this. But let us so vary the sup- diction of Federal posed case as to give it a real resemblance to that under consideration. Suppose a citizen to refuse to pay this export duty, and a suit to be instituted for the purpose of compelling him to pay it. He pleads the Constitution of the United States in bar of the action, notwithstanding which the court gives judgment against him. This would be a case arising under the Constitution, and would be the very case now before the court. We are also asked, if a State should confiscate property secured by a treaty, whether the individual could maintain an action for that property. If the property confiscated be debts, our own experience informs us that the remedy of the Jurisditionwhere creditor against hisdebtor remains. If State coniscat esropei ty secured by treaty; it be land which is secured by a treaty, illustration and afterwards confiscated by a State, the argument does not assume that this title, thus secured, could be extinguished by an act of confiscation. The injured party, therefore, has his remedy against the occupant of the land for that which the treaty secures to him, not against the State for money which is not secured to him. The case of a State which pays off its own debts with paper money no more resembles this Jurisdiction where State pays off its own than do those to which we have alreadydstatehpaper debts with paper adverted. The courts have no jurisdic- money; illustration tion over the contract They cannot enforce it, nor judge of its violation. Let it be that the act dischargfing the debt Alarshall's Constitutional Opinions. 394 is a mere nullity, and that it is still due. Yet the Federat courts have no cognizance of the case. But suppose a State to institute proceedings against an individual, which depended on the validity of an act emitting bills of credit; suppose a State to prosecute one of its citizens for refusing paper money, who should plead the Constitution in bar of such prosecution. If his plea should be overruled, and judgment rendered against him, his case would resemble this; and unless the jurisdiction of this court might be exercised over it, the Constitution would be violated, and the injured party be unable to bring his case before that tribunal to which the people of the United States have assigned all such cases. It is most true that this court will not take jurisdiction Dutyofcourttodecide if it should not; but it is equally true casesbroughtbeforeit. 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 Supreme Court iavested with appellate occur which we would gladly avoid; jurisdiction in all cases arising under Constitu- but we cannot avoid them. All we can tion and laws of United States. 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. 395 Cohens v. State of Virginia. To escape the operation of these comprehensive words, the counsel for the defendant has mentioned instances in which the Constitution might be violated without giving jurisdiction to this court. These words, therefore, however universal in their expression, must, he contends, be limited and controlled in their construction by circumstances. One of these instances is the grant by a State of a patent of nobility. The court, he says, cannot annul this grant. This may be very true; but by no means justifies the inference drawn from it. The articleJudicial power does does not extend the judicial power to nox end to everyon every violation of the Constitution stitution which may possibly take place, but to " a case in law or equity" in which a right under such law is asserted in a court of justice. If the question cannot be brought into a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article. But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the Constitution, to which the judicial power of the United States would extend. The same observation applies to the other in- Extent of judicial stances with which the counsel who power. opened the cause has illustrated this argument. Although they show that there may be violations of the Constitution of which the courts can take no cognizance, they do not show that an interpretation more restrictive than the words themselves import ought to be given to this article. They do not show that there can be 1" a case in law or equity," arising under the Constitution, to which the judicial power does not extend. Marshall's Constitutional Opinions. 396 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 arrested by the circumstance that a State was a party. This leads to the consideration of the Eleventh Amendment. It is in these words: "1The judicial power of the United The Eleventh Amend- States shall not be construed to extend ment to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." It is a part of our history, that, at the adoption of the Constitution, all the States were greatly indebted; and History of adoption ofte apprehenintatesdbs Eleenh menmet.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 al -arm was general; and to quiet the apprehensions that were so extensively 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 nation may be inferred from the terms of the amendment. It doe's not comprehend controversies between two or more States, or between a State and a foreign State. The jurisdiction of- the court 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 0 9 0'7 tj I 397 Gohens v. S/ate of Virginia. from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were per- To what suits the sons who mighlt probably be its credit- amendmient extends ors. 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 prosecuted by individuals, but not to those brought by States. The first impression made on th e mind by this amendment is that it was intended for those cases, and f or those only, in which Amendment applies to suits by individuals some demand against a, State is made upontemads gis 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 interest 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 changingT the relations between the whole and its parts as to strip the government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active violation. The words of the amendment appear to the court to justify and require this construction. The judicial power is not "1to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State," etc. What is a suit? We understand it to be the prosecution or pursuit of some claim, demand, or request. In law language it is the prosecution of some demand in a Marshall's Consfilutional Opinions. 398 court of justice. The remedy for every species of wrong, is, says Judge Blackstone, "the being put in possession of that right whereof the party injured is deprived." "1The instruments whereby this remedy is obtained are a diversity of suits and actions, which are defined by the Mirror to be the ' lawful demand of one's right.' Or, as Bracton and Fleta express it, in the words of Justinian, 'jus prosequendi in judicio quod alicui debetur.'" Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party suing claims to obtain something to which he has a right. To commence a suit is to demand something by the institution of process in a court of justice; and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State we should understand process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. Suits had been commenced in the Supreme Court against some of the States Object of the amend- before this amendment was introduced ment. into Congress, and others might be commenced before it should be adopted by the State Legislatures, and might be depending at the time of its adoption. The object of the amendment was not only to prevent the commencement of future suits, but to arrest the prosecution of those which might be commenced when this article should form a part of the Constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend 399 Cohens v. State of Virginia. to any suit which may be commenced, or which, if already commenced, may be prosecuted against a State by the citizen of another State. If a suit brought in one court, and carried by legal process to a supervising court, be a continuation of A pplies to suit co the same suit, then this suit is not com- against a State menced nor prosecuted against a State. It is clearly, in its commencement, the suit of a State against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defense against a claim made by a State. A writ of error is defined to be a commission by which the judges of one court are authorized Writ of error defined. to examine a record upon which a judgment was given in another court, and, on such examination, to affirm or reverse the same according to law. "If," says my Lord Coke, " by the writ of error the plaintiff may recover or be restored to anything, it may be released by the name of an action." In Bacon's Abridgment, tit. Error, L, it is laid down that, " where by a writ of error the plaintiff shall recover or be restored to any personal thing, as debt, damage, or the like, a release of all actions personal is a good plea; and when land is to be recovered or restored in a writ of error, a release of actions real is a good bar; but where by a writ of error the plaintiff shall not be restored to any personal or real thing, a release of all actions, real or personal, is no bar." And for this we have the authority of Lord Coke, both in his Commentary on Littleton and in his Reports. A writ of error, then, is in the nature of a suit or action, when it is to restore the party who obtains it to the possession of anything which is Marshall's Constitutional Opinions. 400 withheld from him, not when its operation is entirely defensive. This rule will apply to writs of error from the courts of the United States, as well as to those writs in England. Under the Judiciary Act the effect of a writ of error Effect of a writ of error is simply to bring the record into court, under the Judiciary Act. 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 violates the Constitution or laws 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 demanded from the State. TNo claim against it of any description is asserted or prosecuted. The party is not to be restored to the possession of anything. Essentially, it is an appeal on a single point; and the defendant who appeals from a judgment rendered against him is never said to commence or prosecute a suit against the plaintiff who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual mode of removing suits at common law; and because, perhaps, it is more technically proper where a single point of law, and not the whole case, is to be re-examined. But an appeal might be given, and might be so regulated as to effect every purpose of a writ of error. The mode of removal is form, and not substance. Whether it be 401 Cohens v. State of Virginia. by writ of error, or appeal, no claim is asserted, no demand is made, by the original defendant; he only asserts the constitutional right to have his defense examined by that tribunal whose province it is to construe the Constitution and laws of the Union. The only part of the proceeding which is in any manner personal is the citation. And what Wi ferrCtto is the citation?. It is Simply notice to to opposite party the opposite party that the record is transferred into another court, where he may appear or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of court and may, therefore, not know that his cause is removed, common Justice requires that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment can not be given against him for his non-appearance, but the judgment is to be re-examined, and reversed, or affirmed, in like manner as if the party had appeared and argued his cause. The point of view in which this writ of error, with its citation, has been considered uniformly Writs of error in suits in the courts of the Union has been instituted by the United wrell illustrated by a reference to the issued. 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 errors, accompanied with citations, have uniformly 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 re26 Marshall's Constitutional Opinions. 402 examined, and affirmed or reversed. It has never been suggested that such writ of error was a suit against the United States, and therefore not within the jurisdiction of the appellate 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 Writ of error to review judgnient of State re-examining the question, whether that court not the commencement orproseou- judgment be in violation of th''Constition of a suit against the State. tution or laws of the United States, does not commence or prosecute a suit against the State, whatever may be its opinion, where the effect of the writ may be to restoro 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 Eleventh Amendment, it is not a suit commenced or prosecuted "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 extended to all cases arising under the Constitution or laws of the United States, without respect to parties. 2d. The second objection to the jurisdiction of the court Objection raised to ex- is that its appellate power cannot be ercise of appellate exercised in any case, over the judgpower over judgmenta s of a State court. ment of a State court. This objection is sustained chiefly by arguments drawn from the supposed total separation of the judiciary of a State from that of the Union, and their entire inde 403 Cohens v. State of Virginia. pendence 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 argument fails with it. This hypothesis is not founded on any words in the Constitution which might seem to countenance it, but on the unreasonableness 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 unreasonableness, this total incompatibility, be examined. That the United States form, for many and for most important purposes, a single nation has The United States form not yet been denied. In war we are asinglenationformost one people. In making peace we are important purposes one people. In all commercial regulations we are one and the same people. In many other respects the American people are one. And the government 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 purposes, a nation; and for all these purposes her government is complete; uentfpartsof the Unite to all these objects it is competent.tates. The people have declared that in the exercise of all powers given for these objects it is supreme. It can, then, Marshall's Constitutional Opinions. 404 in effecting these objects, legitimately control all individnals 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 judicial power should be competent to give efficacy to the constitutional laws of the Legispjudgents o Stte tri- lature? That department can decide bunals, whenessential. on the validity of the Constitution or law of a State, if it be repugnant to the Constitution or to a law of the United States. Is it unreasonable that it should also be empowered to decide on the judgment of a State tribunal enforcing such unconstitutional law? Is it so very unreasonable as to furnish a justification for controlling the words of the Constitution? We think it is not. We think that, in a government acknowledgedly supreme with respect to objects of vital interest 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 contravene 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 405 Cohens v. State of Virginia. this political axiom, that the Federal courts should either possess exclusive jurisdiction in Exclusive jurisdiction such cases, or a power to revise the of Supreme Court ultimately to construe judgment rendered in them by State constitution and laws of United States. tribunals. If the Federal and State courts have concurrent jurisdiction 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 department and to the State courts, however they may be constituted. " 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 in 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. Marshall's Gonstitutional Opinions.40 406 They give to the Supreme Court appellate jurisdiction de.in all cases arising under the Constitution, laws, de.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. In expounding them we may be permitted to take into view those considerations to which courts have always allowed great weight in the exposition of laws. The framers of the Constitution would naturally examine the state of thingrs existing at Object of ConstitutionInZ to form a more per- the time; and their work sufficiently feet union attests that they did so. All acknowledge thiat they were convened for the purpose of strengthening, the Confederation by enlarging the powers of the government, and by giving efficacy to those which it before possessed, but could not exercise. They inform us themselves, in the instrument they presented to the American public, that one of its objects was to form a more perfect union. -Under such circumstances we certainly should not expect to find in that instrument a diminution of the powers of the actual government. Previous to the adoption of the Confederation Congress established courts which received Appellate jurisdiction apas piedcddi h in prize causes=-previ al-in piecauses dcddi h ousto onfder courts of the respective States. This power of the government to establish tribunals for these appeals was thought consistent with, and was founded on, its political relations with the States. These courts did exercise appellate jurisdiction over those cases decided in the State courts to which the judicial power of the Federal Government extended. The Confederation gave to Congress the power "1of 407 Cohens v. State of Virginia. establishing courts for receiving and determining finally appeals in all cases of captures." This power was uniformly construed to authorize those courts to receive appeals from the sentences of State courts, and to affirm or reverse them. State tribunals are not mentioned; but this clause in Under the Confederathe Confederation necessarily com- tion. prises them. Yet the relation between the General and State governments was much weaker, much more lax, under the Confederation than under the present Constitution; and the States being much more completely sovereign, their institutions were much more independent. The convention which framed the Constitution, on turning their attention to the judicial Action of convention power, found it limited to a few ob- which framed the Constitution with respect jects, but exercised, with respect to to appellate jurisdicS I. tion. some of those objects, in its appellate form, over the judgments of the State courts. They extend it, among other objects, to all cases arising under the Constitution, laws and treaties of the United States, and in a subsequent clause declare that in such cases the Supreme Court shall exercise appellate jurisdiction. Nothing seems to be given which would justify the withdrawal of a judgment rendered in a State court on the Constitution, laws or treaties of the United States from this appellate jurisdiction. Great weight has always been attached, and very rightly attached, to contemporaneous Great weight attached exposition. No question, it is believed, to contemporaneous exposition. has arisen to which this principle applies more unequivocally than to that now under consideration. The opinion of the Federalist has always been consid Marshall's Constitutional Opinions. 408 ered as of great authority. It is a complete commentary on our Constitution, and is appealed to by all parties in the questions to which that instrument The Federalist a cornplete commentary on has given birth. Its intrinsic merit entitles it to this high rank, and the part two of its authors performed in framing the Constitution put it very much in their power to explain the views with which it was framed. These essays having been published while the Constitution was before the Nation for adoption or rejection, and having been written in answer to objections founded entirely on the extent of its powers, and on its diminution of State sovereignty, are entitled to the more consideration where they frankly avow that the power objected to is given, and defend it. In discussing the extent of the judicial power, the Federalist says, "lHere another question What the Federalist says of extent of judi- occurs: What relation would su bsist becial power. tween the National and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter to the Supreme Court of the United States. The Constitution in direct terms gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of Federal cognizance in which it is not to have an original one, without a single expression to confine its operation to the inferior Federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of National concern, else the judicial authority 409 Cohens v. State of Virginia. of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the National and State systems are to be regarded as ONE WHOLE. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal which is destined to unite and assimilate the principles of natural justice and the rules of National decision. The evident aim of the plan of the National convention is that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions, which give appellate jurisdiction to the Supreme Court, to appeals from the subordinate Federal courts, instead of allowing their extension to the State courts, would be to abridge the latitude of the terms, in subversion of the intent, contrary to every sound rule of interpretation." A contemporaneous exposition of the Constitution, certainly of not less authority than that which has just been cited, is the Judi-_TheJudiciaryActitselfc position of the Consticiary Act itself. We know that in the tution. Congress which passed that act were many eminent members of the Convention which formed the Constitution. Not a single individual, so far as is known, supposed that part of the act, which gives the Supreme Court appellate jurisdiction over the judgments Marsh`all's Constitutional Opinions. 410 of the State courts in the cases therein specified, to be unauthorized by the Con-titution. While on this part of the argument, it may be also mnaterial to observe that the uniform Uniform decisions of decisions of this court on the point now the Supreme Court on the point assented to by th courth of tl under consideration have been assented States to, with a single exception, by the courts of every State in the Union whose judgments have been revised. It has been the unwelcome duty of this tribunal to reverse the judgments of many State courts in cases in which the strongest State feelings were engaged. Judges whose talents and character would grace any bench, to whom a disposition to submit to jurisdiction that is usurped, or to surrender their legitimate powers, will certainly not be imputed, have yielded without hesitation to the authority by which their judgments were reversed, while they, perhaps, disapproved the judgment of reversal. This concurrence of statesmen, of legislators, and of judges, in the same construction of the Constitution, may justly inspire some confidence in that construction. In opposition to it, the counsel who made this point has presented in a great variety of forms the idea already noticed, that the Federal and State Supervising power of Federal court as pro- courts must of necessity, and from the vided in Constitution not inconsistent withn re of the be in all independence of State natu Constitution, courts things totally distinct and independent of each other. If this court can correct the errors of the courts of Virginia, he says, it makes them courts of the United States, or becomes itself a part of the judiciary of Virginia. But it has been already shown that neither of these consequences necessarily follows. The American people 411 Golzens v. State of Vii qinia. may certainly grive to a national tribunal a supervising power over those judgments of the State courts which may conflict with the Constitution, laws, or treaties of the United States, without converting them into Federal courts, or convertingy the National into a State tribunal. The one court still derives its authority from the State, the other stilt derives its authority from the Nation. If it shall be established, he says, that this court has appellate jurisdiction over the State courts in all cases enumerated in the third article of the Constitution, a complete consolidation of the States, so far as respects judicial power, is produced. But certainly the mind of the gentleman who urged this arg-ument is too accurate not to perceive that he has carried it too far; that the premises by no means justify the conclusion. "~ A complete consolidation of the States, so far as respects the judicial power," would authorize the Legrislature to confer on the Federal courts appellate jurisdiction from the State courts in all cases whatsoever. The distinction between such a power, and that of giving appellate jurisdiction in a few specified cases in the decision of which the Nation takes an interest, is too obvious not to be perceived by all. This opinion has been alread 'y drawn out to too great a length to admit of entering into a particular consideration of the various forms in which the counsel who made this point has, with much ingenuity, presented his argument to the court. The argument in all its forms is essentially the same. It is founded, not on the words of the Constitution, but on its spirit, a spirit extracted not from the words of the instrument, but from his view of the nature of our Union, and of the great fundamental principles on which the fabric stands. Marshall's Constitutional Opinions. 412 To this argument, in all its forms, the same answer may be given. Let the nature and objects of our Union be considered; let the great fundamental principles on which the fabric stands be examined; 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 affect the Nation, as to require that words which import this power should be restricted by a forced Martin v. Hunter cited. construction. The question, then, must depend on the words themselves; and on their construction we shall be the more readily excused for not adding to the observations already made, because the subject was fully discussed and exhausted in the case of Martin v. Hunter. 3d. We come now to the third objection, which, though Jurisdiction given by differently stated by the counsel, is subthe Judiciary Act. stantially the same. One gentleman has said that the Judiciary Act does not give jurisdiction in the case. The cause was argued in the State court on a case agreed by the parties, which states the prosecution under a law for selling lottery tickets, which is set forth, and further states the act of Congress by which the city of ty of t of - Washington was authorized to establish Validity of act of Con- ~ gress authorizing lot- the lottery. It then states that the tery to be established lottery was regularly established by virtue of the act, and concludes with referring to the court the questions, whether the act of Congress be valid? whether, on its just construction, it constitutes a bar to the prosecution? and whether the act of assembly, on which the prosecution is founded, be not itself invalid? These questions were decided against the operation of the 413 Cohens v. State of Virginia. act of Congress, and in favor of the operation of the act of the State. If the twenty-fifth section of the Judiciary Act be inspected, it will at once be perceived that it comprehends expressly the case under consideration. But it is not upon the letter of the act that the gentleman who stated this point in this form founds his argument. Both gentlemen concur substantially in their views of this part of the case. They deny that the act of Congress on which the plaintiff in error relies is a law of the United States; or, if a law of the United States, is within the second clause of the sixth article. In the enumeration of the powers of Congress, which is made in the eighth section of the firs arte fin tt f e i Exclusive power of first article, we find that of exercising Congress to legislate for the district embracexclusive legislation over such district ing the seat of government. as shall become the seat of government. This power, like all others which are specified, is conferred on Congress as the Legislature of the Union; for, strip them of that character, and they would not possess it. In no other character can it be exercised. In legislating for the district, they necessarily preserve the character of the Legislature of the Union; for it is in that character alone that the Constitution confers on them this power of exclusive legislation. This proposition need not be enforced. The second clause of the sixth article declares that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land." The clause which gives exclusive jurisdiction is unquestionably a part of the Constitution, and as such binds all the United States. Those who contend that acts of Marshall's Constitutional Opinions. 414 Congress made in pursuance of this power do not, like acts made in pursuance of other powers, bind the Nation, ought to show some safe and clear rule which shall support this construction, and prove that an act of Congress, clothed in all the forms which attend other legislative acts, and passed in virtue of a power conferred on and exercised by Congress as the Legislature of the Union, is not a law of the United States, and does not bind them. One of the gentlemen sought to illustrate his proposiharacter in which tion, that Congress, when legislating Congress acts when ex- for the District, assumed a distinct charercising its powers of exclusive legislation acter, and was reduced to a mere local Legislature, whose laws could possess no obligation out of the ten miles square, by a reference to the complex character of this court. It is, they say, a court of common law and a court of equity. Its character, when sitting as a court of common law, is as distinct from its character, when sitting as a court of equity, as if the powers belonging to those departments were vested in different tribunals. Though united in the same tribunal, they are never confounded with each other. Without inquiring how far the union of different characters in one court may be applicable, in principle, to the union in Congress of the power of exclusive legislation in some places, and of limited legislation in others, it may be observed that the forms of proceedings in a court of law are so totally unlike the forms of proceedings in a court of equity that a mere inspection of the record gives decisive information of the character in which the court sits, and consequently of the extent of its powers. But if the forms of proceeding were precisely the same, and the court the same, the distinction would disappear. 4 155 Cohens v. State of Virginia. Since Congress legislates in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited, we must inquire whether there be anything in the nature of this exclusive legislation which necessarily confines the operation of the laws made in virtue of this power to the place with a view to which they are made. Connected with the power to legislate within this district is a similar power in forts, arseActs of Congress with nals, dock-yards, etc. Congress has a respect to f orts, arsenals, etc.; illustration right to punish murder in a fort, or of legislation under exclusive and limited other place, within its exclusive jurisdic- power tion; but no general right to punish murder committed within any of the States. In the act for the punishment of crimes against the United States, murder committed within a fort, or any other place or district of country, under the sole and exclusive jurisdiction of the United States, is punished with death. Thus Congress legislates in the same act, under its exclusive and its limited powers. The act proceeds to direct that the body of the criminal, after execution, may be delivered to a surgeon for dissection, and punishes any person who shall rescue such body during its conveyance from the place of execution to the surgeon to whom it is to be delivered. Let these actual provisions of the law, or any other provisions which can be made on the subject, be considered with a view to the character in which Congress acts when exercising its powers of exclusive legislation. If Congress is to be considered merely as a local Legislature, invested, as to this object, with powers limited Marshall's Constitutional Opinions. 416 to the fort, or other place, in which the murder may be congress not a local committed, if its general powers canLegislature not come in aid of these local powers, how can the offense be tried in any other court than that of the place in which it has been committed? How can the offender be conveyed to, or tried in, any other place? How can he be executed elsewhere? How can his body be conveyed through a country under the jurisdiction of another sovereign, and the individual punished, who, within that jurisdiction, shall rescue the body? Were any one State of the Union to pass a law for trying a criminal in a court not created by itself, in a place not within its jurisdiction, and direct the sentence to be executed without its territory, we should all perceive and acknowledge its incompetency to such a course of legislation. If Congress be not equally incompetent, it is because that body unites the powers of local legislation with those which are to operate through the Union, and may use the last in aid of the first; or because the power of exercising exclusive legislation draws after it, as an incident, the power of making that legislation effectual, and the incidental power may be exercised throughout the Union, because the principal power is given to that body as the Legislature of the Union. So, in the same act, a person who, having knowledge of the commission of murder, or other felony, on the high seas, or within any fort, arsenal, dock-yard, magazine, or other place or district of country, within the sole and exclusive jurisdiction of the United States, shall conceal the same, etc., he shall be adjudged guilty of misprision of felony, and shall be adjudged to be imprisoned, etc. It is clear that Congress cannot punish felonies generally, and, of consequence, cannot punish misprision of 417 Cohens v. State of Virginia. felony. It is equally clear that a State Legislature, the State of Maryland, for example, cannot punish those who, in another State, conceal a felony committed in Maryland. How, then, is it that Congress, legislating exclusively for a fort, punishes those who, out of that fort, conceal a felony committed within it? The solution and the only solution of the difficulty is that the power vested in Congress, as Power of r ~ Power of Congress to the Legislature of the United States, legislate exclusively within any place ceded to legislate exclusively within any by a State carries the n right to make that place ceded by a State, carries with it, power effectual as an incident, the right to make that power effectual. If a felon escape out of the State in which the act has been committed, the government cannot pursue him into another State, and apprehend him there, but must demand him from the executive power of that other State. If Congress were to be considered merely as the local Legislature for the fort or other place in which the offense might be committed, then this principle would apply to them as to other local Legislatures; and the felon, who should escape out of the fort, or other place, in which the felony may have been committed, could not be apprehended by the marshal, but must be demanded from the executive of the State. But we know that the principle does not apply; and the reason is that Congress is not a local Legislature, but exercises this particular power, like all its other powers, in its high character as the Legislature of the Union. The American people thought it a necessary power, and they conferred it for their own benefit. Being so conferred, it carries with it all those incidental powers which are necessary to its complete and effectual execution. Whether any particular law be designated to operate 27 Marshall's Constitutional Opinions. 418 without the district or not depends on the words of that law. If it be designed so to operExtent of operation of particular law matter ate, then the q~estion, whether the of construction for the court power so exercised be incidental to the power of exclusive legislation, and be warranted by the Constitution, requires a consideration of that instrument. In such cases the Constitution and the law must be compared and construed. This is the exercise of jurisdiction. It is the only exercise of it which is allowed in such a case. For the act of Congress directs that "no other error shall be assigned or regarded as a ground of reversal, in any such case as aforesaid, than such as appears on the face of the record, and immediately respects the before mentioned questions of validity or construction of the said Constitution, treaties," etc. The whole merits of this case, then, consist in the construction of the Constitution and the Act of Congress. The jurisdiction of the court, if acknowledged, goes no farther. This we are required to do without the exercise of jurisdiction. The counsel for the State of Virginia have, in support of this motion, urged many arguments of great weight against the application of the act of Congress to such a case as this; but those arguments go to the construction of the Constitution, or of the law, or of both, and seem, therefore, rather calculated to sustain their cause upon its merits than to prove a failure of jurisdiction in the court. After having bestowed upon this question the most deliberate consideration of which we are capable, the court is unanimously of opinion that the objections to its jurisdiction are not sustained, and that the motion ought to be overruled. Motion denied. 419 Cohens v. S/ale of Virginia. NOTE. Speaking of the appellate powers of the Supreme Court of the United States under the Constitution and under the 25th section of the Judiciary Act of 1789, Kent says: " A graver question could scarcely have arisen in that court, or one involving considerations of higher importance and delicacy, or more deeply affecting the permanency and tranquillity of the American Union." Com. (12th Ed.), I, 317. " This vital question was again presented in 1821, in the great case of Cohens v. Virginia. The opinion of the Supreme Court was delivered by the Chief Justice, and his fame might well rest on that magnificent argument alone. " The Cohens, plaintiffs in error, were indicted in the Sessions Court of Norfolk for selling lottery tickets in Virginia contrary to a State statute. Their defense, that the lottery was established and the tickets issued by the city of Washington, under its charter granted by Congress, was overruled, and they were fined one hundred dollars; from which judgment, the Sessions Court being the highest State court having jurisdiction of the case, they sued out a writ of error from the Supreme Court of the United States. The State of Virginia made it a test case, being represented by eminent counsel, who made and elaborately argued a motion to dismiss the writ for want of jurisdiction. This motion the court unanimously overruled, Marshall's opinion filling nearly sixty printed pages of compact and powerful argument, based upon an analysis of the Constitution, without citing a single authority. Its opening paragraph is an impressive example of his extraordinary power of terse and luminous statement, and his method of laying bare a fallacy by reducing it to its simplest terms." Marshall Memorial, II, 509, 510 (Hitchcock). For references to Cohens' case, see McMaster, Hist. of People of U. S., V, 412, 414; Miller on Const. of U. S. 76, 98, 317,318; Kent, Com. (12th Ed.), I, 327 et seq.; Story, Const. of U. S., I, ch. iv, ~ 373-396; Ibid., III, ch. xxxviii, ~~ 1701 et seq.; Magruder's "John Marshall," 198-201; Prof. James B. Thayer, "John Marshall," 77, 88. "Judge Roane of the Court of Appeals of Virginia Marshall's Consfi/ulional Opinions. 420 attacked this opinion anonymously in the newspapers, with what Marshall called 'coarseness and malignity.' Jefferson, also, bitterly objected to it." Prof. James B. Thayer, "John Marshall," 88; Van Santvoord, Lives of Chief Justices U. S. 410, and note. REFERENCES TO COHENS v. VIRGINIA, IN MARSHALL MEMORIAL VoL. L Justice Horace Gray, pp. 68, 92; Hon. Charles Freeman Libby, pp. 123, 124; Prof. Jeremiah Smith, pp. 147, 148, 168; Prof. James Bradley Thayer, p. 236; Judge Le Baron Colt, pp. 297, 298, 299, 304; Judge Nathaniel Shipman, p. 336; Hon. John F. Dillon, pp. 374, 375; Hon. John Bassett Moore, pp. 518, 519. VoL II. Charles J. Bonaparte, Esq., pp. 22, 23; Judge James C. MacRae, p. 75; Joseph P. Blair, Esq., p. 155; Colonel Horatio Bisbee, p. 169; Judge Horace H. Lurton, p. 204; Justice John A. Shauck, pp. 229, 230; Hampton L. Carson, Esq., pp. 243, 257; Hon. John F. Follett, p. 276; Hon. Henry Cabot Lodge, p. 330; Hon. William Lindsay, p. 358; Isaac N. Phillips, Esq., pp. 389, 390; Gov. A. B. Cummins, p. 458; Frederick W. Lehmann, Esq., pp. 468, 480; Hon. Henry Hitchcock, pp. 509 et seq.; James L. Blair, Esq., p. 526; Judge Elmer B. Adams, pp. 539, 540; Sanford B. Ladd, Esq., pp. 556, 557. VoL IIL Hon. U. M. Rose, pp. 116, 120, 128; Judge Bartlett Tripp, p. 157; Judge Cornelius H. Hanford, p. 251; Charles E. Shepard, Esq., pp. 273, 274. THE NATIONAL SUPREMACY OVER FOREIGN AND INTERSTATE COMMERCE. No more impressive example of the great and permanent influence and value of Marshall's constitutional decisions exists than in what is known as the great New York Steamboat Case, next given, reported under the name of Gibbons v. Ogden, decided in 1824%. It is the first case that construed, in any important particular, the commerce clause of the Constitution. The doctrines of this case remain in full force until this day. The most efficient cause of the formation of the Union under the Constitution was the selfish and conflicting regulations of the different States in respect of com.merce, each trying to secure an advantage over the others, there being no power under the Articles of Confederation to regulate or control this vital subject.' This experience led to a provision in the Constitution2 in these words: "1The Congress shall have power... to regulate commerce with foreign nations and among, the several States." This power, as respects foreign and domestic commerce, is contained in eleven words -" to regulate commerce with foreign nations and among the several States." There is, most wisely, no attempt to define what is " commerce," or what is meant by "1regulation." The Steamboat Case involved the respective powers of Congress and the States over the all-important subject of commerce. It attracted the attention of the whole country. 1 See note at end of this case in the present volume. 2 Art. 1, sec. 8, par. a. Marshall's Constitutional Opinions. 422 The circumstances out of which that case arose and under which the decision of Marshall was made are not only extremely interesting, but should be borne in mind as showing:Marshall's judicial courage in overruling the New York view so long maintained and supported by such great names.' There were enacted by the State of New York five different statutes between 1798 and 1811, granting or confirming to Livingston and Fulton, or one of them, the exclusive right of using steamloats upon all the navigable rivers, bays and waters within the limits and jurisdiction of the State of New York for a specified term of years. One provision was that for each additional boat which could be propelled by steam with or against the current of the Hudson River, at not less than four miles an hour, they should be entitled to five years' extension to their grant, not to exceed thirty years. For such period the State granted a monopoly, under pain of forfeiture of boats and vessels owned by others which should violate the exclusive right granted to Livingston and Fulton. These acts recited that the inducement to the grant was to encourage the grantee to engage in the hazard of making expensive experiments in improving steam navigation. In 1812 the highest court of New York, in Livingston v. Van Ingen,2 sustained the validity of this grant, holding that it was not repugnant to the commerce clause of the Constitution of the United States, and was, at all 1 Marshall Memorial, I, 375-379; and see references to the Marshall Memorial in the note at the end of case in the present publication. Further as to this celebrated cause see Kent, Com. (12th Ed.), I, 43T. et seq.; Prof. James B. Thayer, "John Marshall," 88, 89; Magruder's "John Marshall," 173-175; Van Santvoord, "Lives of Chief Justices," 412. 29 Johnson's Reports, 507 (1812). 423 Gibbons v. Ogden. events, good until Congress should enact a statute which would conflict with the right granted by the State of New York. The grounds and reasons in favor of sustaining the legislation of the State were stated by Chancellor Kent with great force. He pointed out that this legislation extended over a period of fourteen years, the first act having been passed by men familiar with the discussions which attended the adoption of the Constitution when Jay was Governor, had been approved by the Council of Revision, and the last act was passed after the State grant was drawn into question; that the States retained all powers not clearly surrendered to the General Government, including, he said, "all the internal commerce of the State by land and water; that the Hudson River is the property of the people of this State, and the Legislature had the same jurisdiction over it that they have over the land or over any of our public highways, and that the Congressional power relates to external and not to internal commerce, and is confined to a regulation of external commerce, and all the internal commerce of the State by land and water remains entirely, and I may say exclusively, within the scope of the original sovereignty of the State."' Accordingly, the defendants were absolutely enjoined, in favor of Livingston and Fulton, from navigating the Hudson with their steamboat, the "Hope," and carrying passengers on that river from New York to Albany. Livingston, the grantee, was the celebrated chancellor and was distinguished for his eminent and patriotic services in the establishment of the Union. He had for many years been engaged in schemes of steam naviga19 Johns. 507, 572, 578. Marshall's Constitutional Opinions.42 424 tion, and when he was the minister of our country at Paris accidentally met Robert Fulton. An experimental boat was put upon the Seine, Livingston furnishing the funds; Fulton devised the engine and ordered it from the celebrated inventor and manufacturer, Watt. The Legislature of New York renewed the exclusive grant to Livingston and Fulton. The "1Clermont," a vessel of one hundred and fifty-five tons burden, one hundred and thirty-two feet long, eighteen feet wide and seven feet deep, was launched on the East River, and departed for Albany in September, 1807, from a dock on the Hudson River, making the trip of one hundred and fifty miles in thirty-two hours. The success was complete. Other vessels were built, and the steamboat service fully and finally established. Fulton, though not the original inventor of steam navigation, is now admitted to be entitled to the honor of having been the first who successfully applied steam to navigation. Practically the "Clermont " had navigated. Under these grants and under the decision of the highest court of Newv York, already mentioned, made in 1812, a large amount of money had been invested in the construction of steamboats. Afterwards, 1818, in this condition of affairs, the case of Gibbons against Ogden was brought in the Court of Chancery in New York. Chancellor Kent enjoined the defendant Ogden from running a steamboat between Elizabethtown, in New Jersey, and the City of New York, holding that the question had, after an elaborate and profound discussion, been decided in the previous case of Livingston v. Van Ingen. At the January term, 1820, the highest court of the State unanimously affirmed Chancellor Kent's order, holding the exclusive monopoly in the grants made by the Legis 425 425Gibbhons v. Ogdien lature of New York to be valid, and tha t the Court of Chancery had the power to restrain citizens of another State from navigating the waters of New York with vessels propelled by steam, although such vessels may have been duly enrolled and licensed under the laws of the United States as coasting, vessels. It was this last case that came before the Supreme Court of the United States. Tha t court reversed the decree of the INew York courts and held that the power of the General Government to regulate com~merce extends to navigation in the waters throughbout the entire Union, and does not stop at the external boundary of a State, and that the grants to Livingston and Fulton of an exclusive right to navigate all waters within the jurisdiction of the State of New York, by steamboats, was inoperative as against the laws of the United States regulating the coasting trade, and could not restrain vessels licensed under these laws from navigating waters within the jurisdiction of a State in the prosecution of such trade. The cause was argued in the Supreme Court by counsel of the greatest eminence; Wirt and Webster against the. constitutionality of the New York legislation; Em met and Oakley in favor of it.' The opinion of the Supreme I The substance of the legal points in Wirt's argument, written out by himself, may be seen in Wheaton's Reports, including a characteristic rhetorical display in the peroration, in reply to Emmet. On February 1, 1824, Wirt thus writes to his friend Judge Carr: " About to-morrow week will come on the great Steamboat question from New York. Emmet and Oakley on one side, Webster and myself on the other. Come down and hear it. Oakley is said to be one of the first logicians of the age. Webster is as ambitious as Cgesar. He will not be outdone by any man, if it is within the compass of his power to avoid it. It will be a combat worth witnessing. I have the last speech, and have yet to study the cause; but I know Marshall's Constitutional Opinions. 426: Court was delivered by Chief Justice Marshall. lie defined, for the first time, the meaning of the word "1commerce"ý as used in the Constitution. He said it includes navigation. It includes trade and commerce. But he went further and said that it was intercourse itseyj'. He defined also the word " regulate " in a definition which it has been justly said can never be excelled in its brevity ", accuracy and comprehensiveness. To "regulate" commerce, said flarshall, is to prescribe the rule by which commerce is to be governed; and he furthermore asserted the proposition, so extensive and beneficent in its future operation, that "1wherever commerce among the States the facts, and have only to weave the argument." Kennedy, "1Life of Wirt," 1I, 143; Van Santvoord, "Lives of the Chief Justices," 412; Irving Browne, "Short Studies of Great Lawyers," Wirt, 266-268. Mr. Ticknor has left an interesting record of the circumstances under which Webster, then nearing the zenith of his vigor, made his argument. Mr. Ticknor's detailed account will be found at large in George Ticknor Curtis' " Life of Webster," I, 216, 217. In the midst of a speech in the House on the tariff, Mr. Webster was unexpectedly notified that Gibbons v. Ogden would come on the next morning. "The tapes had not been off the papers for more than a year." From ten P. M. Mr. Webster worked continuously for eleven hours until nine A. M., went into court and made his famous argument of five hours' duration, in the cause. Mr. Ticknor's account justifies Judge Story's statement in 1826 that Mr. Webster has a giant's constitution, and can bear every sort of fatigue. "1Life and Letters of Story," I, 487. The substance of Webster's argument, revised by himself, occupying, however, only about twenty pages, is contained in Vol. VI of Webster's Works (Little & Brown, 1851), and in Wheaton's Reports, Vol. 9, pp. 3-33. We have found no reference to this argument in the published volumes of the "Private Correspondence of Daniel Webster," edited by Fletcher Webster, Boston, 1857. Mr. Oakley's argrument as found in Wheaton's Reports, Vol. 9, occupies from pp. 33-79, Mr. Emmet's pp. 79-159, and Mr. Wirt's pp. 159-186. 427 427 Gibbons v. Ogden. goes, the judicial power of the United States goes to protect it from invasion by State Legislatures." The same sound and liberal principles were applied by the Chief Justice respecting, the right of the States to tax foreign commerce, in the case of Brown against Maryland. Upon these decisions rest the navigation and interstate commerce laws and the recent anti-trust laws of the United States. The decisions of the Supreme Court and the laws regulating commerce and creating the Interstate Commerce Commission have had the effect to render the commerce of this country free from the selfishness, the trammels and the exactions to which it would have been subjected had the decision of the courts of New York in the Steamboat Case been affirmed by the Supreme Court of the United States. The subsequent history of the country shows that notwithstanding the decision of the Supreme Court the different States have passed almost innumerable acts to tax and to fette.-r the commerce of the country in order to obtain some selfish advantage at the expense of the other States of the Union. We owe it to Marshall and the eminent judges who, sat in the court with him, that our vast foreign commerce is untrammeled, and that our interstate commerce, still vaster, on land and water, by boat or rail or telegraph, knows no State lines, is subject to no State exactions, and is as free to every one engaged in it as the elements of air and water.' 1 Marshall Memorial, 1, 375-379 (Dillon), 488, 489 (Mitchell); 11, 54 (Justice Brown), 82 (McRae), 352 (Lindsay), 482 (Lehmann), 557 (Ladd); 111, 38 (Rogers). Marshall's Constitutional Opinions. 428 Gibbons v. Ogden. February Term, 1824. [9 Wheaton's Reports, 1-240.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: The power to regulate commerce includes the power to regulate navigation, and does not stop at the external boundary of a State. It does not comprehend that commerce which is completely internal. The laws of New York, which grant to Livingston and Fulton the exclusive right to navigate all the waters within the jurisdiction of that State, with boats moved by steam or fire, for a term of years, are inoperative as against the laws of the United States regulating the coasting trade, and cannot restrain vessels licensed to carry on the coasting trade under the laws of the United States, from navigating those waters in the prosecution of that trade. The necessary facts appear in the preceding statement. The following is the opinion in full of the Chief Justice:' MARSHALL, Chief Justice. The appellant contends that this decree is erroneous, because the laws, which purport 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice. BUSHROD WASHINGTON, WILLIAM JOHNSON, GABRIEL DUVALL, Associate Justice. THOMAS TODD, JOSEPH STORY, SMITH THOMPSON, There was no dissent in the case, but Mr. Justice Johnson wrote 429 429 Gibbons v. Ogden. to g(ive the exclusive privileg~e it sustains, are repugnant to the Constitution and laws of the United States. Opinion They are said to be repugrnant1st. To that clause in the Constitution which authorizes Congress to regulate commerce. 2d. To that which authorizes Congress to promote the progress of science and useful arts. The State of New York maintains the constitutionality of these laws; and their Legislature, Constitutionality of thei Coucilof Rvisin, nd teirlaws granting excluthei Coucilof Rvisin, nd teirsive privilege of navijudges, have repeatedly concurred in gation in New York maintained by its this opinion. It is supported by great courts. names - by names which have all the titles to consideration that virtue, intelligence, and office can bestow. No tribunal can approach the decision of this question without feeling a just and real respect for that opinion which is sustained by such authority; but it is the province of this court, while it respects', not to bow to it implicitly; and the judges must exercise, in the examination of the subject, that understanding which Provian opinion (9 Wheaton, pp. 222-239) commencing as follows: "1Thle judgment entered by the court in this cause has my entire approbation; but having adopted my conclusions on views of the subject materially different from those of my brethren, I feel it incumbent on me to exhibit those views. I have also another inducement: In questions of great importance and great delicacy I feel my duty to the public best discharged by an effort to maintain my opinions in my own way." Justice Thompson was appointed the 9th of December, 1823, and took his seat on the bench the 10th of February, 1824. He took no part in the decision of causes argued before that day. Daniel Webster and Attorney-General William Wirt appeared for the appellant. Thomas J. Oakley and T. A Emmet appeared for the respondent. Marshall's Constitutional Opinions.43 430 dence has bestowed upon them, with that independence which the people of the United States expect from this department of the government. As preliminary to the very able discussions of the Constitution which we have heard from the Political situation of the States before the bar, and as having some influence on. formation of the Constitution and after- its construction, reference has been wards. made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these. allied sovereigns converted their league into a government, when they converted their congrress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a Legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a changre, the extent of which must be determined by a fair consideration of the instrument by which that change was effected. This instrument contains an enumeration of powers exStrict construction of pressly granted by the people to their powers granted by the g-overnme nt. It has been said that Constitution disapproved, these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized "1to make all laws which shall be necessary and proper" for the purpose. But this limitation on the means which may be used is not extended to the powers which are con 431 431 Gibbons v. Ogden~ ferred; nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend only against that enlargmed construction which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction which would cripple the government and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded. 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 haveIndtringeet said. If, from the imperfection of of any given pwer the courts will, if2 neceshuman langyuage, there should be serious sary, look to the obzD jects for whichi it is doubts respecting the extent of any given. given power, it is a well settled rule that the objects for which it was given, especially when those objects are 1expressed in the instrument itself, should have great in Marshall's Constitutional Opinions. 432 fluence in the construction. We know of no reason for excluding this rule from the present case. The grant does not convey power which might be beneficial to the grantor, if retained by himself, or which can inure solely to the benefit of the grantee, but is an investment of power for the general advantage, in the hands of agents selected for that purpose, which power can never be exercised by the people themselves, but must be placed in the hand of agents, or lie dormant. We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred. The words are, " Congress shall have power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes." The subject to be regulated is commerce; and our Constitution being, as was aptly said at the "Commerce," the subject to be regulated - bar, one of enumeration, and not of Meaning of the word definition, to ascertain the extent of the power it becomes necessary to settle the meaning of the word. The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse. The mind can scarcely conceive a system for regulating commerce between nations, which shall exclude all laws concerning navigation, which shall be 433 Gibbons v. Ogden. silent on the admission of the vessels of the one nation into the ports of the other, and be confined to prescribing rules for the conduct of individuals in the actual employment of buying and selling, or of barter. If commerce does not include navigation, the government of the Union has no direct power Commerce includes navover that subject, and can make no law igation. prescribing what shall constitute American vessels, or requiring that they shall be navigated by American seamen. Yet this power has been exercised from the commencement of the government, has been exercised with the consent of all, and has been understood by all to be a commercial regulation. All America understands, and has uniformly understood, the word "commerce" to comprehend navigation. It was so understood, and must have been so understood, when the Constitution was framed. The power over commerce, including navigation, was one of the primary objects for which the people of America adopted their government, and must have been contemplated in forming it. The convention must have used the word in that sense, because all have understood it in that sense; and the attempt to restrict it comes too late. If the opinion that " commerce," as the word is used in the Constitution, comprehends navigation also, requires any additional confirmation, that additional confirmation is, we think, furnished by the words of the instrument itself. It is a rule of construction, acknowledged by all, that the exceptions from a power mark its The exceptions from a extent; for it would be absurd, as well power mark its extent. as useless, to except from a granted power that which was not granted, - that which the words of the grant 28 Marshall's Constitutional Opinions. 434 could not comprehend. If, then, there are in the Constitution plain exceptions from the power over navigation, plain inhibitions to the exercise of that power in a particular way, it is a proof that those who made these exceptions, and prescribed these inhibitions, understood the power to which they applied as being granted. The ninth section of the first article declares that " no preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another." This clause cannot be understood as applicable to those laws only which are passed for the purposes of revenue, because it is expressly applied to commercial regulations; and the most obvious preference which can be given to one port over another, in regulating commerce, relates to navigation. But the subsequent part of the sentence is still more explicit. It is, " nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another." These words have a direct reference to navigation. The universally acknowledged power of the governPower to impose em- ment to impose embargoes must also bargoes included in be considered as showing that all power to regulate commerce America is united in that construction which comprehends navigation in the word "commerce." Gentlemen have said, in argument, that this is a branch of the war-making power, and that an embargo is an instrument of war, not a reoulation of trade. That it may be, and often is, used as an instrument of war cannot be denied. An embargo may be imposed for the purpose of facilitating the equipment or manning of a fleet, or for the purpose of concealing the progress of an expedition preparing to sail from a particular port. In these, and in similar cases, it is a military instrument, 435 435 Gibbons v. Ogdeni. and partakes of the nature of war. Put all embargoes are not of this description. They are sometimes resorted to without a view to war, and with a single view to commerce. In such case an embargo is no more a war measure than a merchantman is a ship of war because both are vessels which navigate the ocean with sails and seamen. When Congress imposed that embargo which, for a time, engaged the attention of every man in the United States, the avowed object of the law was the protection of commerce, and the avoiding of war. By its friends and its enemies it was treated as a commercial, not as a war, measure. The persevering earnestness and zeal with which it was opposed, in a part of our country which supposed its interests to be vitally affected by the act, cannot be forgotten. A want of acuteness in discovering objections to a measure to which they felt the most deeprooted hostility will not be imputed to those who were arrayed in opposition to this. Yet they never suspected that navigation was no branch of trade, and was, therefore, not comprehended in the power to regulate com.mnerce. They did, indeed, contest the constitutionality of the act, but on a principle which admits the construction for which the appellant contends. They denied that the particular law in question was made in pursuance of the Constitution, not because the power could not act directly on vessels, but because a perpetual embargo was the annihilation, and not the regulation, of commerce. In terms, they admitted the applicability of the words used in the Constitution to vessels; and that, in a case which produced a degree and extent of excitement calculated to draw forth every principle on which legitimate resistance could be sustained. No example could more Marshall's Constitutional Opinions. 436 strongly illustrate the universal understanding of the American people on this subject. The word used in the Constitution, then, comprehends, and has been always understood to comprehend, navigation within its meaning; and a power to regulate navigation is as expressly granted as if that term had been added to the word "commerce." To what commerce does this power extend? The The power to regulate Constitution informs us, to commerce commerce comprehendseveiy species of with foreign nations, and among the commercial intercourse between the several States, and with the Indian United States and foreign nations. tribes." It has, we believe, been universally admitted that these words comprehend every species of commercial intercourse between the United States and foreign nations. No sort of trade can be carried on between this country and any other to which this power does not extend. It has been truly said that commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term. If this be the admitted meaning of the word in its application to foreign nations, it must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain, intelligible cause which alters it. The subject to which the power is next applied is to Extent of power with commerce "among the several States." respect to commerce among the States The word "among" means intermingled with. A thing which is among others is intermingled with them. Commerce among the States cannot stop at the external boundary line of each State, but may be introduced into the interior. 437 Gibbons v. Ogden. It is not intended to say that these words comprehend that commerce which is completely internal, which is carried on between man and man in a State, or between different parts of the same State, and which does not extend to or affect other States. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word " among " is, it may very properly be restricted to that commerce which concerns more States than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a State, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended would not have been made, had the intention been to extend the power to every description. The enumeration presupposes something not enumerated; and that something, if we regard the language or the subject of the sentence, must be the exclusively internal commerce of a State. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the Nation; and to those internal concerns which affect the States generally; but not to those which are completely within a particular State, which do not affect other States, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a State, then, may be considered as reserved for the State itself. But in regulating commerce with foreign nations, the power of Congress does not stop at the The power of Congress to regulate commerce jurisdictional lines of the several States. may be exercised wherever the subject It would be a very useless power if it exists. could not pass those lines. The commerce of the United Marshall's Constitutional Opinions.48 438 States with foreign nations is that of the whole United States. Every district has a right to participate in it. The deep streams which penetrate our country in every direction pass through the interior of almost every State in the Union, and furnish the means of exercising this right. If Congress has the power to regulate it, that power must be exercised wherever the subject exists. If it exists within the States, if a foreign voyage may commence or terminate at a port within a State, then the power of Congress may be exercised within a State. This principle is, if possible, still more clear, when applied to commerce "among the several States." They either join each other, in which case they are separated by a mathematical line, or they are remote from each other, in which case other States lie between them. What is commerce "1among," them? and how is it to be conducted? Can a trading expedition between two adjoining States commence and terminate outside of each? And if the trading intercourse be between two States remote from each other, must it not commence in one, terminate in the other, and, probably, pass through a third? Commerce among, the States must, of necessity, be commerce with the States. In the regulation of trade with the Indian tribes, the action of the law, especially when the Constitution was made, was chiefly within a State. The power of Congress, then, whatever it may be, must be exercised within the territorial jurisdiction of the several States. The sense of the Nation on this subject is unequivocally manifested by the provisions made in the laws for transporting goods by land between Baltimore and Providence, between New York and Philadelphia, and between Philadelphia and Baltimore. We are now arrived at the inquiry, What is this power? 439 Gibbons v. Ogden. It is the power to regulate; that is, to prescribe the rule by which commerce is to be governed.1 Powerto regulate comThis power, like all others vested in merce vested absoCongress, is complete in itself, may belyi g exercised to its utmost extent, and acknowledges no limitations other than are prescribed in thie Constitution. These are expressed in plain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. 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 abuse. They are the restraints on which the people must often rely solely in all representative governments. The power of Congress, then, comprehends navigation within the limits of every State in the Power of Congress to Union; so far as that navigation may regulate commerce Uincomprehends navigabe, in any manner, connected with tion within the limits of every State in the "4commerce with foreign nations, or Union. among the several States, or with the Indian tribes." It 1 "We have, in Gibbons v. Ogden, that magazine of constitutional law upon this subject, a definition by Chief Justice Marshall of what it is to regulate commerce, which perhaps can never be excelled in its brevity, accuracy and comprehensiveness." Miller, Const. of U. S. 449. Marshall's Constilutionat Opinions. 440 may, of consequence, pass the jurisdictional line of New York, and act upon the very waters to which the prohibition now under consideration applies. But it has been urged with great earnestness, that, although the power of Congress to regulate commerce with foreign nations, and among the several States, be The States excluded co-extensive with the subject itself, and from the exercise of such power. have no other limits than are prescribed in the Constitution, yet the States may severally exercise the same power within their respective jurisdictions. In support of this argument it is said that they possessed it, as an inseparable attribute of sovereignty, before the formation of the Constitution, and still retain it, except so far as they have surrendered it by that instrument; that this principle results from the nature of the government, and is secured by the Tenth Amendment, that an affirmative grant of power is not exclusive, unless in its own nature it be such that the continued exercise of it by the former possessor is inconsistent with the grant, and that this is not of that description. The appellant, conceding these postulates, except the last, contends that full power to regulate a particular subject implies the whole power, and leaves no residuum; that a grant of the whole is incompatible with the existence of a right in another to any part of it. Both parties have appealed to the Constitution, to leyislative acts, and judicial decisions; and have drawn arguments from all these sources to support and illustrate the propositions they respectively maintain. The grant of the power to lay and collect taxes is, like No analogy hetween the power to regulate commerce, made power of taxation and in general terms, and has never been power of regulating commerce understood to interfere with the exercise of the same power by the States; and hence has been 441 Gibbons v. Ogden. drawn an argument which has been applied to the question under consideration. But the two grants are not, it is conceived, similar in their terms or their nature. Although many of the powers formerly exercised by the States are transferred to the government of the Union, yet the State governments remain, and constitute a most important part of our system. The power of taxation is indispensable to their existence, and is a power which, in its own nature, is capable of residing in, and being exercised by, different authorities at the same time. We are accustomed to see it placed, for different purposes, in different hands. Taxation is the simple operation of taking small portions from a perpetually accumulating mass, susceptible of almost infinite division; and a power in one to take what is necessary for certain purposes is not, in its nature, incompatible with a power in another to take what is necessary for other purposes. Congress is authorized to lay and collect taxes, etc., to pay the debts, and provide for the common defense and general welfare of the United States. This does not interfere with the power of the States to tax for the support of their own governments; nor is the exercise of that power by the States an exercise of any portion of the power that is granted to the United States. In imposing taxes for State purposes they are not doing what Congress is empowered to do. Congress is not empowed to tax for those purposes which are within the exclusive province of the States. When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a State proceeds to regulate commerce with foreign nations, or among the several States, it is exercising the very power that is granted to Congress, and is doing the very thing which Congress is au Marshall's Constitutional Opinions. 442 thorized to do. There is no analogy, then, between the power of taxation and the power of regulating commerce. In discussing the question whether this power is still in the States, in the case under considA State cannot regulate commece guwhile eration, we may dismiss from it the Congress is regulating it. inquiry whether it is surrendered by the mere grant to Congress, or is retained until Congress shall exercise the power. We may dismiss that inquiry because it has been exercised, and the regulations which Congress deemed it proper to make are now in full operation. The sole question is, Can a State regulate commerce with foreign nations and among the States while Congress is regulating it? The counsel for the respondent answer this question in the affirmative, and rely very much on the restrictions in the tenth section, as supporting their opinion. They say, very truly, that limitations of a power furnish a strong argument in favor of the existence of that power; and that the section which prohibits the States from laying duties on imports or exports proves that this power might have been exercised, had it not been expressly forbidden; and, consequently, that any other commercial regulation, not expressly forbidden, to which the original power of the State was competent, may still be made. That this restriction shows the opinion of the convention that a State might impose duties on exports and imports, if not expressly forbidden, will be conceded; but that it follows, as a consequence, from this concession, that a State may regulate commerce with foreign nations and among the States, cannot be admitted. We must first determine whether the act of laying "duties or imposts on imports or exports " is considered in the Constitution as a branch of the taxing power, or 443 Gibbons v. Ogden. of the power to regulate commerce. We think it very clear that it is considered as a branch of the taxing power. It is so treated in the The power of imposing duties on impoi ts and first clause of the eighth section: 1" Con- exports is a branch of the taxing power gress shall have power to lay and collect taxes, duties, imposts, and excises;" and before commerce is mentioned, the rule by which the exercise of this power must be governed is declared. It is, that all duties, imposts, and excises shall be uniform. In a separate clause of the enumeration the power to regulate commerce is given, as being entirely distinct from the right to levy taxes and imposts, and as being a new power not before conferred. The Constitution, then, considers these powers as substantive, and distinct from each other; and so places them in the enumeration it contains. The power of imposing duties on imports is classed with the power to levy taxes, and that seems to be its natural place. But the power to levy taxes could never be considered as abridging the right of the States on that subject; and they might, consequently, have exercised it by levying duties on imports or exports, had the Constitution contained no prohibition on this subject. This prohibition, then,is an exception from the acknowledged power of the States to levytaxes, not from the questionable power to regulate commerce. "A duty of tonnage " is as much a tax as a duty on imports or exports; and the reason A duty of tonnage is which induced the prohibition of those part of power of imtaxes extends to this also. This tax may be imposed by a State, with the consent of Congress; and it may be admitted that Congress cannot give a right to a State, in virtue of its own powers. But a duty of tonnage being part of the power of imposing taxes, its pro Marshall's Constitutional Opinions. 444 hibition may certainly be made to depend on Congress, without affording any implication respecting a power to regulate commerce. It is true that duties may often be, and in fact often are, imposed on tonnage, with a view to the regulation of commerce; but they may be also imposed with a view to revenue; and it was, therefore, a prudent precaution to prohibit the The Statesprohibited States from exercising this power. The from exercise of this power by the consti- idea that the same measure might, actution. cording to circumstances, be arranged with different classes of power, was no novelty to the framers of our Constitution. Those illustrious statesmen and patriots had been, many of them, deeply engaged in the discussions which preceded the war of our Revolution, and all of them were well read in those discussions. The right to regulate commerce, even by the imposition of duties, was not controverted; but the right to impose a duty for the purpose of revenue produced a war as important, perhaps, in its consequences to the human race, as any the world has ever witnessed. These restrictions, then, are on the taxing power, not on that to regulate commerce; and presuppose the existence of that which they restrain, not of that which they do not purport to restrain. But the inspection laws are said to be regulations of commerce, and are certainly recognized in the Constitution as being passed in the exercise of a power remaining with the States. That inspection laws may have a remote and considerable influence on commerce will not be denied; but that a power to regulate commerce is the source from which the right to pass them is derived cannot be admitted. The o'bject of inspection laws is to improve the 445 Gibbons v. Ogden. quality of articles produced by the labor of a country; to fit them for exportation; or, it may Inspection laws act be, for domestic use. They act upon upon the subject before it becomes an arthe subject before it becomes an article tiele of foreign or interstate commerce. of foreign commerce, or of commerce among the States, and prepare it for that purpose. They form a portion of that immense mass of legislation which embraces everything within the territory of a State not surrendered to the General Government; all which can be most advantageously exercised by the States themselves. Inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, etc., are component parts of this mass. No direct general power over these objects is granted to Congress; and consequently they rePower with respect to main subject to State legislation. If inspection, quarantine, C health laws, etc., rethe legislative power of the Union can mains subject to State reach them, it must be for National purposes; it must be where the power is expressly given for a special purpose, or is clearly incidental to some power which is expressly given. It is obvious that the government of the Union, in the exercise of its express powers, that, for example, of regulating commerce with foreign nations and among the States, may use means that may also be employed by a State in the exercise of its acknowledged powers; that, for example, of regulating commerce within the State. If Per o Congress Congress license vessels to sail from over such objects. one port to another in the same State, the act is supposed to be necessarily incidental to the power expressly granted to Congress, and implies no claim of a direct Marshall's Constitutional Opinions.44 446 power to regulate the purely internal commerce of a State, or to act directly on its system of police. So, if a State, in passing laws on subjects acknowledged to be within its control, and with a view to those subjects, shall adopt a measure of the same character with one which Congress may adopt, it does not derive its authority from the particular power which has been granted, but from some. other which remains with the State, and may be executed by the same means. All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from dlistinct powers; but this does not prove that the powers themselves are identical. Although the means used in their execution may sometimes approach each other so nearly as to be confounded, there are other situations in which they are sufficiently distinct to establish their individuality. In our complex system, presenting the rare and difficult scheme of one general government, Contests respecting power will necessarily Whose action extends over the whole, arise under our complex system of govern- but which possesses only certain enument. merated powers, and of numerous State governments, which retain and exercise all powers not delegated to the Union, contests respecting power must arise. Were it even otherwise, the measures taken by the respective governments to execute their acknowledged powers would often be of the same description, and might sometimes interfere. This, however, does not prove that the one is exercising, or has a right to exercise, the powers of the other. The acts of Congyress, passed in 1796 and 1799,1 empowering, and directing the officers of the General Govern12 U. S. Laws, P. 545; 3 U. S. Laws, p. 126. 447 Gibbons v. Ogden ment to conform to and assist in the execution of the quarantine and health laws of a State, congress may control proceed, it is said, upon the idea that State laws so far as may be necessary for these laws are constitutional. It is the regulation of comundoubtedly true that they do proceed merce. upon that idea; and the constitutionality of such laws has never, so far as we are informed, been denied. But they do not imply an acknowledgment that a State may rightfully regulate commerce with foreign nations, or among the States; for they do not imply that such laws are an exercise of that power, or enacted with a view to it. On the contrary, they are treated as quarantine and health laws, are so denominated in the acts of Congress, and are considered as flowing from the acknowledged power of a State to provide for the health of its citizens. But as it was apparent that some of the provisions made for this purpose, and in virtue of this power, might interfere with, and be affected by, the laws of the United States made for the regulation of commerce, Congress, in that spirit of harmony and conciliation which ought always to characterize the conduct of governments standing in the relation which that of the Union and those of the States bear to each other, has directed its officers to aid in the execution of these laws; and has, in some measure, adapted its own legislation to this object, by making provisions in aid of those of the States. But in making these provisions the opinion is unequivocally manifested that Congress may control the State laws, so far as it may be necessary to control them for the regulation of commerce. The act passed in 1803,1 prohibiting the importation of:slaves into any State which shall itself prohibit their im13 U. S. Laws, p. 529. Marshall's Constitutional Opinions. 448 portation, implies, it is said, an admission that the States possessed the power to exclude or admit Power with respect to xhich it is inferred that importation of slaves them; from which it is inferred that into the States does not admit thepossessionof they possess the same power with reany similar power. spect to other articles. If this inference were correct, if this power was exercised not under any particular clause in the Constitution, but in virtue of a general right over the subject of commerce, to exist as long as the Constitution itself, it might now be exercised. Any State might now import African slaves into its own territory. But it is obvious that the power of the States over this subject previous to the year 1808 constitutes an exception to the power of Congress to regulate commerce, and the exception is expressed in such words as to manifest clearly the intention to continue the pre-existing right of the States to admit or exclude, for a limited period. The words are, "The migration or importation of such persons as any of the States, now existing, shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808." The whole object of the exception is to preserve the power to those States which might be disposed to exercise it; and its language seems to the court to convey this idea unequivocally. The possession of this particular power, then, during the time limited in the Constitution, cannot be admitted to prove the possession of any other similar power. It has been said that the act of August 7, 1789, acSo with respect to ac- knowledges a concurrent power in the knorlegment of con-r States to regulate the conduct of pilots, lat conducrren t power to regulate conduct of pilots and hence is inferred an admission of their concurrent right with Congress to regulate commerce with foreign nations, and amongst the States. 449 449 Gibbons v. Ogden. But this inference is not, we think, justified by the fact. Although Congress cannot enable a State to legislate, Congress may adopt the provisions of a State on any subject. When the government of the Union was brought into existence, it found a system for the regulation of its pilots in full f orce in every State. The act which has been mentioned adopts this system, and gives it the same validity as if its provisions had been specially made by Congress. But the act, it may be said, is prospective also, and the adoption of laws to be. made in future presupposes the right in the maker to legislate on the subject. The act unquestionably manifests an intention to leave this subject entirely to the States, until Congress should think proper to interpose; but the very enactment of such a law indicates an opinion that it was necessary; that the existing system would not be applicable to the new state of things, unless expressly applied to it by Congress. But this section is confined to pilots within the "bays, inlets, rivers, harbors and ports of the United States," which are, of course, in whole or in part, also within the limits of some particular State. The acknowledged power of a State to regulate its police, its domestic trade, and to govern its own citizens, may enable it to legislate on this subject, to a considerable extent; and the adoption of its system by Congress, and the application of it to the whole subject of commerce, does not seem to the court to imply a right in the States so to apply it of their own authority. But the adoption of the State system being- temporary, being only "1until further legislative provision shall be made by Congress," shows, conclusively, an opinion that Congress could con29 Mlars~hall's Constitutional Opinions. 45G trol the whole subject, and might adopt the system of the States, or provide one of its own. A State, it is said, or even a private citizen, may conPower to erect light- struct 1ioght-houses. But gentlemen boss girl ds hoseinctifo hafrelydi- must be aware that, if this proves a ultingctfommtatofrceg- oe na tt oreuaecm ulaingcomere, owr i a tae t reulte om merce, it proves that the same power is in the citizen. States, or individuals, who own lands, may, if not forbidden by law, erect on those lands what buildings they please; but this power is entirely distinct from that of regulating commere3e, and may, we presume, be restrained, if exercised so as to produce a public mischief. These acts were cited at the bar for the purpose of Acts cited fail to estah- showing an opinion in Congress that lish concuirent power the States possess, concurrently with in the States to regulate conmmerce the Legislature of the Union, the power to regulate commerce with foreign nations and among the States. Upon review-Ing them, we think they do not establish the proposition they were intended to prove. They show the opinion that the States retain powers enabling them to pass the laws to which allusion has been made, not that those laws proceed from the particular power which has been delegated to Congress. It has been contended by the counsel for the appelThe term " to regu- lant, that, as the word "to regulate" late"1 implies full impliesintsaurfllpwroe power over the thinginisntrfulpwroe to be regulated the thing to be regulated, it excludes, necessarily, the action of all others that would perform' the same operation on the same thing. That regulation is designed for the entire result, applying to those parts which remain as they were, as well as to those which are altered. It produces a uniform Whole, which is as much disturbed and deranged by changing what the 451 Gibbons v. Ogden. regulating power designs to leave untouched as that on which it has operated. There is great force in this argument, and the court is not satisfied that it has been refuted. Since, however, in exercising the power of regulating their own purely internal affairs, Acts of State Legislawhether of trading or police, the States ture must yield to the law of Congress. may sometimes enact laws the validity of which depends on their interfering with, and being contrary to, an act of Congress passed in pursuance of the Constitution, the court will enter upon the inquiry, whether the laws of New York, as expounded by the highest tribunal of that State, have, in their application to this case, come into collision with an act of Congress, and deprived a citizen of a right to which that act entitles him. Should this collision exist, it will be immaterial whether those laws were passed in virtue of a concurrent power "to regulate commerce with foreign nations and among the several States," or in virtue of a power to regulate their domestic trade and police. In one case and the other the acts of New York must yield to the law of Congress; and the decision, sustaining the privilege they confer against a right given by a law of the Union, must be erroneous. This opinion has been frequently expressed in this court, and is founded as well on the nature of the government as on the words of the Constitution. In argument, however, it has been contended that, if a law passed by a State in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers. Marshall's Constitutional Opinions. 452 But the framers of our Constitution foresaw this state of things, and provided for it by deSupremacy of the Con- claring the supremacy not only of itstitution and lawvs and rigtesnt o treaties made in pursanceofit. self, but of the laws made in pursuance of it. The nullity of any act inconsistent with the Constitution is produced by the declaration that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties is to such acts of the State Legislatures as do not transcend their powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are contrary to, the laws of Congress made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case the act of Congress, or treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it. In pursuing this inquiry at the bar, it has been said Act for regulating the that the Constitution does not confer coasting trade examined in detail. the right of intercourse between State and State. That right derives its source from those laws whose authority is acknowledged by civilized man throughout the world. This is true. The Constitution found it an existing right, and gave to Congress the power to regulate it. In the exercise of this power Congress has passed "1 An act for enrolling or licensing ships or vessels to be employed in the coasting trade and fisheries, and for regulating the same." The counsel for the respondent contend that this act does not give the right to sail from port to port, but confines itself to regulating a pre-existing right, so far only as to confer certain privileges on enrolled and licensed vessels in its exercise. 453 453 Gibbons v. Ogden. It will at once occur, that, when a Legislature attaches certain privileges and exemptions to the exercise of a right over which its control is absolute, the law must imply a power to exercise the right. The privileges are gone if the right itself be annihilated. It would be contrary to all reason, and to the course of human affairs, to say that a State is unable to strip a vessel of the particular privileges attendant on the exercise of a right, and yet may annul the right itself; that the State of New York cannot prevent an enrolled and licensed vessel, proceeding from Elizabethtown, in New Jersey, to New York, from enjoying in her course, and on her entrance into port, all the privileges conferred by the act of Congress; but can shut her up in her own port, and prohibit altogether her entering, the waters and ports of another State. To the court it seems ver y clear that the whole. act on the subject of the coasting, trade, according to those principles which govern the construction of statutes', implies, unequivocally, an authority to licensed vessels to carry on the coasting trade. But we will proceed briefly to notice those sections which bear more directly on the subject. The first section declares that vessels enrolled by virtue of a previous law, and certainFissetoofhea. other vessels enrolled as described inFissetoofhea. that act, and having a license in force, as is by the act required, "1and no others, shall be deemed ships or vessels of the United States, entitled to the privileges of ships or vessels employed in the coasting trade." This section seems to the court to contain a positive enactment that the vessels it describes shall be entitled to the privileges of ships or vessels employed in the coasting trade. These privileges cannot be separated Mfarshall's Constitutional Opinions. 454 from the trade, and cannot be enjoyed, unless the trade may be prosecuted. The grant of the privilege is an idle, empty form, conveying nothing, unless it convey the right to which the privilege is attached, and in the exercise of which its whole value consists. To construe these words otherwise than as entitling the ships or vessels described to carry on the coasting trade would be, we think, to disregard the apparent intent of the act. The fourth section directs the proper officer to grant Fourth section of the to a vessel qualified to receive it "'a act. license for carrying on the coasting trade," and prescribes its form. After reciting the compliance of the applicant with the previous requisites of the law, the operative words of the instrument are, " license is hereby granted for the said steamboat, Bellona, to be employed in carrying on the coasting trade for one year from the date hereof, and no longer." These are not the words of the officer; they are the words of the Legislature, and convey as explicitly the authority the act intended to give, and operate as effectually, as if they had been inserted in any other part of the act than in the license itself. The word "license ' means permission or authority; and a license to do any particular thing Meaning of "license" ' and extent of right is a permission or authority to do that transferred thereby thing; and if granted by a person having power to grant it, transfers to the grantee the right to do whatever it purports to authorize. It certainly transfers to him all the right, which the grantor can transfer, to do what is within the terms of the license. Would the validity or effect of such an instrument be questioned by the respondent, if executed by persons claiming regularly under the laws of New York? 455 Gibbons v. Ogden. The license must be understood to be, what it purports to be, a legislative authority to the steamboat Bellona "to be employed in carrying on the coasting trade for one year from this date." It has been denied that these words authorize a voyage from New Jersey to New York. It is true that no ports are specified; but it is equally true that the words used are perfectly intelligible, and do confer such authority as unquestionably as if the ports had been mentioned. The coasting trade is a term well understood. The law has defined it; and all know its meaning perfectly. The act describes, with great minuteness, the various operations of a vessel engaged in it; and it cannot, we think, be doubted that a voyage from New Jersey to New York is one of those operations. Notwithstanding the decided language of the license, it has also been maintained that it Purpose of license to gives no right to trade; and that its authorize vessels to cairy on coasting sole purpose is to confer the American trade. character. The answer given to this argument, that the American character is conferred by the enrolment, and not by the license, is, we think, founded too clearly in the words of the law to require the support of any additional observations. The enrolment of vessels designed for the coasting trade corresponds precisely with the registration of vessels designed for the foreign trade, and requires every circumstance which can constitute the American character. The license can be granted only to vessels already enrolled, if they be of the burden of twenty tons and upwards; and requires no circumstance essential to the American character. The object of the license, then, cannot be to ascertain Marshall's Constitutional Opinions.45 456 the character of the vessel, but to do what it professes to do,-- that is, to give permission to a vessel, already proved by her enrolment to be American, to carry on the coasting trade. But if the license be a permit to carry on the coasting trade, the respondent denies that these boats were engaged in that trade, or that the decree under consideration has restrained them from prosecuting it. The boats of the appellant were, we are told, employed in the transportation of passengers; and this is no part of that comnmerce which Congress may regulate. if, as our whole course of legislation on this subject No distinction between shows, the power of Congress has been vessels employed in universally udrto nAeiat transportation of pas- udrto nAeiat seingers and those em-dnaito, ployed in transporta comprehend aiain it is a very per tio ofprpery. suasive, if not a conclusive, argument to prove that the construction is correct; and if it be correct, no clear distinction is perceived between the, power to regulate vessels employed in transporting men for hire and property for hire. The subject is transferred to Congress, and no exception to the grant can be admitted which is not proved by the words or the nature of the thing. A coasting vessel employed in the transportation of passengers is as much a portion of the American marine as one employed in the transportation of a cargo, and no reason is perceived why such vessel should be withdrawn from the regulating power of that government which has been thought best fitted for the purpose generally. The provisions of the law respecting native seamen, and respecting ownership, are as applicable to vessels carryingr men as to vessels carrying manufactures; and no reason is perceived why the power over the subject should not 457 Gibbons v. Ogden. be placed in the same hands. The argument urged at the bar rests on the foundation that the power of Congress does not extend to navigation as a branch of cominerce, and can only be applied to that subject incidentally and occasionally. But if that foundation be removed, we must show some plain, intelligible distinction, supported by the Constitution or by reason, for discriminating between the power of Congress over vessels employed in navigating the same seas. We can perceive no such distinction. If we refer to the Constitution, the inference to be drawn from it is rather against the distinction. The section which restrains Congress from prohibiting the migration or importation of such persons as any of the States may think proper to admit, until the year 1808, has always been considered as an exception from the power to regulate commerce, and certainly seems to class migration with importation. Migration applies as appropriately to voluntary as importation does to involuntary arrivals; and so far as an exception from a power proves its existence, this section proves that the power to regulate commerce applies equally to the regulation of vessels employed in transporting men who pass from place to place voluntarily, and to those who pass involuntarily. If the power reside in Congress, as a portion of the general grant to regulate commerce, then acts applying that power to vessels generally must be construed as comprehending all vessels. If none appear to be excluded by the language of the act, none can be excluded by construction. Vessels have always been employed, to a greater or less extent, in the transportation of passengers, and have never been supposed to be, on that account, Marshall's Constitutional Opinions. 458 withdrawn from the control or protection of Congress. Packets which ply along the coast as well as those which make voyages between Europe and America consider the transportation of passengers as an important part of their business. Yet it has never been suspected that the general laws of navigation did not apply to them. The duty act, sections twenty-three and forty-six, contains provisions respecting passengers, and shows that vessels which transport them have the same rights, and must perform the same duties, with other vessels. They are governed by the general laws of navigation. In the progress of things this seems to have grown into a particular employment, and to have Act of March 2, 1819, for "regulating passenger attracted the particular attention of ships and vessels." government. Congress was no longer satisfied with comprehending vessels engaged specially in this business within those provisions which were intended for vessels generally; and on the 2d of March, 1819, passed "An act regulating passenger ships and vessels." This wise and humane law provides for the safety and comfort of passengers, and for the communication of everything concerning them, which may interest the government, to the Department of State; but makes no provision concerning the entry of the vessel, or her conduct in the waters of the United States. This, we think, shows conclusively the sense of Congress (if, indeed, any evidence to that point could be required) that the pre-existing regulations comprehended passenger ships among others; and in prescribing the same duties the Legislature must have considered them as possessing the same rights. If, then, it were even true that the Bellona and the 459 Gibbons v. Ogden. Stoudinger were employed exclusively in the conveyance of passengers between New York and The laws of New York New Jersey, it would not follow that gtra'nting the exclusive privilege related to the this occupation did not constitute a part method of propulsion and not to the charof the coasting trade of the United acter of employment of vessels. States, and was not protected by the license annexed to the answer. But we cannot perceive how the occupation of these vessels can be drawn into question in the case before the court. The laws of New York, which grant the exclusive privilege set up by the respondent, take no notice of the employment of vessels, and relate only to the principle by which they are propelled. Those laws do not inquire whether vessels are engaged in transporting men or merchandise, but whether they are moved by steam or wind. If by the former, the waters of New York are closed against them, though their cargoes be dutiable goods, which the laws of the United States permit them to enter and deliver in New York. If by the latter, those waters are free to them, though they should carry passengers only. In conformity with the law is the bill of the plaintiff in the State court. The bill does not complain that the Bellona and the Stoudinger carry passengers, but that they are moved by steam. This is the injury of which he complains, and is the sole injury against the continuance of which he asks relief. The bill does not even allege, specially, that those vessels were employed in the transportation of passengers, but says, generally, that they were employed "in the transportation of passengers or otherwise." The answer avers only that they were employed in the coasting trade, and insists on the right to carry on any trade authorized by the license. No testimony is taken, andt the writ of injunction and decree restrain these licensed! v.,, Marshall's Constitutional Opinions. 460 sels not from carrying passengers, but from being moved through the waters of New York by steam for any purpose whatever. The questions, then, whether the conveyance of passengers be a part of the coasting trade, and whether a vessel can be protected in that occupation by a coasting license, are not, and cannot be, raised in this case. The real and sole question seems to be whether a steam machine, in actual use, deprives a vessel of the privileges conferred by a license. In considering this question, the first idea which preThe act of Congress sents itself is that the laws of Congress regulating commerce for the regulation of commerce do not applies to all vessels h e i however propelled look to the principle by which vessels are moved. That subject is left entirely to individual discretion, and in that vast and complex system of legislative enactment concerning it, which embraces everything that the Legislature thought it necessary to notice, there is not, we believe, one word respecting the peculiar principle by which vessels are propelled through the water, except what may be found in a single act granting a particular privilege to steamboats. With this exception, every act, either prescribing duties, or granting privileges, applies to every vessel, whether navigated by the instrumentality of wind or fire, of sails or machinery. The whole weight of proof, then, is thrown upon him who would introduce a distinction to which the words of the law give no countenance. If a real difference could be admitted to exist between vessels carrying passengers and others, it has already been observed that there is no fact in this case which can bring up that question. And if the occupation of steamboats be a matter of such general notoriety that 461 461Gibbons v. Ogde--n. the court may be presumed to know it, although not specially informed by the record, then we deny that the transportation of passengers is their exclusive occupation. Tt is a matter of general history that in our western waters their principal employment is the transportation of merchandise; and all know that in the waters of the Atlantic they are frequently so employed. But all inquiry into this subject seems to the court to be put completely at rest by the act already mentioned, entitled "1An act for the enrolment and licensing of steamboats." This act authorizes a steamboat employed, or intended to be employed, only in a river or bay Act "1for the enrolment and licensing of of the United States, owned wholly or steamboats"1 cited. in part by an alien, resident within the United States, to be enrolled and licensed as if the same belonged to a citizen of the United States. This act demonstrates the opinion of Congress that steamboats may be enrolled and licensed, in common with vessels using sails. They are, of course, entitled to the same privileges, and can no more be restrained fromn navigfating, waters and entering ports which are free to such vessels than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire. The one element may be as legitimately used as the other, for every commercial purpose authorized by the laws of the Union; and the act of a State, inhibiting the use of either to any vessel having a license under the act of Congress, comes, we think, in direct collision with that act. As this decides the cause, it is unnecessary to enter on an examination of that part of the Constitution which empowers Congress to promote the progress of science and the useful arts. Marshall's Constilutional Opinions. 462 The court is aware that, in stating the train of reasoning by which we have been conducted to this result, much time has been consumed in the attempt to demonstrate propositions which may have been thought axioms. It is felt that the tediousness inseparable from the endeavor to prove that which is already clear is imputable to a considerable part of this opinion. But it was unavoidable. The conclusion to which we have come depends on a chain of principles which it was necessary to preserve unbroken; and although some of them were thought nearly self-evident, the magnitude of the question, the weight of character belonging to those from whose judgment we dissent, and the argument at the bar, demanded that we should assume nothing. Powerful and ingenious minds, taking, as postulates, A strict and narrow that the powers expressly granted to "conststutiondif the the government of the Union are to be approved contracted, by construction, into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the Constitution of our country, and leave it, a magnificent structure, indeed, to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case it is peculiarly necessary to recur to safe and fundamental principles to sustain those principles, and, when sustained, to make them the tests of the arguments to be examined. 463 Gibbons v. Ogden. Accordingly the decree of the State court was reversed, and the Supreme Court itself entered a decree dismissing Ogden's bill of complaint.1 NOTE. Speaking of the commerce clause of the Constitution Story says: "The want of this power was one of the leading defects of the Confederation, and probably, as much as any one cause, conduced to the establishment of the Constitution." Com. Const, II, ch. xv, ~ 1053. So, Hamilton, Federalist No. 22: "In addition to the defects of the existing Federal system enumerated in the last number, there are others of not less importance, which concur in rendering that system altogether unfit for the administration of the affairs of the Union. The want of a power to regulate commerce is by all parties allowed to be of this number... It is indeed evident, on the most superficial view, that there is no object, either as it respects the interest of trade or finance, that more strongly demands a Federal superintendence." See Webster's Works, VI, 10, argument in Gibbons v. Ogden. Also in 9 Wheaton, pp. 12, 13. Mr. Justice Miller's opinion of the vital importance of the commerce clause is very emphatic: "' The trade between the States was heavily taxed in pursuance of a policy by which each endeavored to lay the burden of raising its revenues upon the others. This has been one of the most difficult things to correct, and efforts in that direction have been made against the attempts to accomplish this object, which have been persistently pursued up to the present time.2 Many cases 1 Form of decree, 9 Wheaton, 239, 240. 2 See Miller, Const. of U. S. 80. The learned author here refers to the following instances of State legislation in contravention of the commerce clause of the Constitution: Statute of New York granting exclusive navigation of waters within the State. Gibbons v. Ogden, 9 Wheat. 1. Statute of Maryland requiring license to sell imported goods. Brown v Maryland, 12 Wheat. 419; Ward v. Maryland, 12 Wall. 418. Statute of Missouri requiring a like license. Welton v. Missouri, 91 U. S. 275. Statute of California imposing a tax on bills of lading for gold or silver carried out of the State. Almy v. California, 24 How. 169. Marshall's Constitutional Opinions. 464 have come before the Supreme Court of the United States involving this question where State laws of this character have been held to be invalid because in conflict with the constitutional power of Congress alone to regulate commerce of that nature. Notwithstanding for nearly one hundred years we have had in the Federal Constitution the declaration that Congress shall have power to regulate commerce among the several States, there are at this hour upon the statute books of almost every State, Statute of Alabama providing for the registration of the names of steamboat owners. Sinnot v. Davenport, 22 How. 227. Statutes of New York and Massachusetts imposing taxes on alien passengers arriving in ports of those States. Passenger Cases, 7 How. 283; Henderson v. Mayor of New York, 92 U. S. 259. Statute of California imposing like taxes. Chy Lung v. Freeman, 92 U. 5. 275. Statute of New York taxing) banks. Bank of Commerce v. New York City, 2 Black, 620; Bank Tax Case, 2 Wall. 200. Statute of Nevada levying a capitation tax upon passengers carried out of the State. Crandall v. Nevada, 6 Wall. 35. Statute of Pennsylvania imposing tax upon articles brought into or carried out of the State. Case of State Freight Tax, 15 Wall. 232; Philadelphia Steamship Co. v. Pennsylvania, 122 U. 5. 326. Statute of Tennessee imposing a license or privilege tax on sleeping-cars. Pickard v. Pillman Southern Car Co., 117 U. 5. 34; Tennessee v. Same, 117 U. 5. 51. Statute of Louisiana imposing a license tax on boats. Moran v. New Orleans, 112 U. 5 69. Statutes regulating delivery of telegraphic dispatches in other States Western Union Telegraph Co. v. Pendleton, 122 U. S. 347; Telegraph Co. v. Texas, 105 U. 5. 460. Statute of Missouri prohibiting bringing certain cattle into the State. Railroad Co. v. Husen, 95 U. 5. 465. Statute of Louisiana regulating transportion of passengers, without distinction of race or color. Hall v. De Cuir, 95 U. 5. 485. Statute of Tennessee taxing drummers Robbins v. Shelby County Tax-ing District, 120 U. 5 489. [Cases reviewed.] Statute of Illinois regulating rates of railroad transportation. Wabash & St. Louis Railway Co. v. Illinois, 118 U. 5. 557. [Cases reviewed ] The more than one hundred and twenty-five cases in the Supreme Court of the United States decided since Gibbons v. Ogden, construing and applying the commerce clause of the Constitution, down to 1898, are carefully collected and chronologically arranged in Mr. William D. Guthrie's learned and valuable Lectures on the Fourteenth Amendment, pp. 186, 187, note. (Little, Brown & Co., 1898.) The doctrines of' the Supreme Court as to the "1Limitations on the Police Power [of the States] arising from the Fedeial Power over Commerce"~ is clearly and ably summarized and commented on by Mr. Alfred Russell in his valuable monograph on "The Police Power of the State." (Chicago, Callaghan & Co., 1900.) 465 Gibbons v. Ogden. laws violating that provision; and there is no dcubt that if that clause were removed to-morrow, this Union would fall to pieces, simply by reason of the struggles of each State to make the property owned in other States pay its expenses. It was this tendency of each State to support its government out of taxes levied upon the property of other States or on the produce or merchandise which must go through one State to another, that more than any other one thing compelled the formation of the present Constitution." 1 It is under the commerce clause that what is known as the Interstate Commerce Act was passed and the Interstate Commerce Commission was created. This act regulates the duties of railway and other common carriers engaged in interstate commerce, and is intended to protect the freedom of commerce which the Constitution designed to secure.2 The more recent anti-trust legislation of Congress rests upon the same or like basis and is intended to effect the same great purpose.3 "The power to regulate commerce is not at all like that to lay taxes. The latter may be concurrent, while the former is exclusive, resulting from the different nature of the two powers." Story, Comn. Const., II, ch. xv, ~ 1064; see also on this point Justice Story in New York v. Miln, 11 Pet. 102; The Passenger Cases, 7 How. 502; Head-Money Cases, 112 U. S. 595. "In regulating commerce, therefore, Congress regulates traffic in things, vehicles of transport and things in transitu, but not the things themselves. Before and after the lransitus they are beyond this power of regulation. The production and use of things in the terminus a quo and the terminus ad quern are not subjects of the commercial power, but of the law of the State or country from which and to which they are transported." Tucker, Const. of U. S., II, 526, and cases cited. The boundaries between the power of Congress and 1 Miller, Const. of U. S. 81, 82. 2The Supreme Court of the United States has declared this act constitutional in many cases. See Interstate Commerce Commission v. B. & 0. Ry. Co., 145 U. S. 263; United States v. Joint Traffic Association, 175 id. 505. 3United States v. Swift & Co. (U. S. Circuit Court, Illinois, before Grosscup, Circuit Judge, 190.3), 122 Federal Rep-Drter, 529. 30 Marshall's Constitutional Opinions. 466 the power of the States over the subject of "commerce among the States " cannot be said to be fully defined notwithstanding the many cases on the subject that have been decided by the Supreme Court. Marshall's language in the above opinion concedes the power of the States over what he variously styles "'the exclusively internal commerce of a State," "the completely internal commerce of a State," etc. But what constitutes such exclusive or complete internal commerce, while plain enough in general, becomes difficult of determination in specific cases, as is shown in the now pending so-called anti-trust litigation. On this subject the Constitution is undergoing judicial development and is destined from the nature of the case to do so for an indefinite, perhaps never-ending period. In the course of this development our experience, as we venture to predict, will show the wonderful sagacity and prevision of Marshall in so carefully using the qualifying words "exclusively," "completely " internal as defining the commerce over which the power of the States is free from Congressional regulation.' REFERENCES TO GIBBONS v. OGDEN, IN MARSHALL MEMORIAL. VOL. I. Justice Horace Gray, pp. 70, 93; Hon. Charles Freeman Libby, p. 127; Prof. Jeremiah Smith, p. 152; Hon. Henry St. George Tucker, p. 251; Judge Le Baron Colt, pp. 300, 302; Hon. John F. Dillon, pp. 375 et seq.; Hon. W. Bourke Cockran, p. 413; Justice James T. Mitchell, pp. 488, 489; Hon. John Bassett Moore, pp. 518, 519. VOL. II. Charles J. Bonaparte, Esq., p. 16; Justice Henry B. Brown, p. 54; Judge James C. MacRae, p. 82; Hon. H. Warner Hill, p. 113; Judge Hoiace H. Lurton, p. 204; Judge Waller C. Caldwell, p. 215; Justice John A. Shauck, p. 232; Hampton L Carson, Esq., p. 261; Hon. John F. Follett, p. 276; Hon. William A. Ketcham, pp. 293, 294; Hon. Henry 1 One of the most important cases on this subject is Wabash R. R. Co v. Illinois, 118 U. S. 557. Among the latest cases are Western Union Telegraph Co. v. New Hope, 187 U. S. 419, and Atlantic & Pacific Tel. Co. v. Philadelphia, 190 U. S. 160, decided at the October term, 1902. 467 Gibbons v. Ogden. Cabot Lodge, p. 331; Hon. William Lindsay, pp. 352, 353, 358; Isaac N. Phillips, Esq., p. 390; Frederick W. Lehmann, Esq., pp. 482, 483; Hon. Henry Hitchcock, pp. 507, 515; James L. Blair, Esq., p. 526; Judge Elmer B. Adams, p. 540; Sanford B. Ladd, Esq., pp. 557, 558, 559. VOL III. Judge John H. Rogers, pp. 37,38,39; Judge Bartlett Tripp, p. 157; Judge T. B. McFarland, p. 184; Hon. John D. Pope, p. 195; Hon. George H. Williams, pp. 219, 221; Horace G. Platt, Esq., p. 232; Judge Cornelius H. Hanford, p. 251. STATE LA WS TAXING THE FRANCHISES OR FUNCTIONS OF FEDERAL INSTRUMENTALITIES UNCONSTITUTIONAL - THE ENFORCEMENVT OF S UCH LA WS MA Y BE ENJOINED B Y THE FEDERAL COURTS. The act of Congress of 1816 rechartering the Bank of the United States was approved by President Madison. The bank had an eventful and stormy career and a disastrous fate. Its history forms one of the most interesting chapters in the worikings of our institutions.' Its 1 The history of the war on the bank under Jackson's administration from his first blow in the message of 1829, including the Bank Veto Message of 1832, the renewal in 183.3 of the war on the bank after Jackson's re-election, the removal of the deposits by President Jackson's order, and the ensuing Panic session of Congress, etc., will be found at largye in Parton's "1Life of Andrew Jackson," III, chs. 20, 29, 36-39, and in Benton's "1Thirty Years' View," I, pp. 158, 220, 232, 242-251, 287, 294, 373-415, 470, 471. Col. Benton led the attack on the bank, and in chapter CX1 1"he looks ahead " and narrates the downfall of the Bank in 1842, and the sheriff's sale of "the marble house and grounds of the Bank of the United States " and of the e~state of Nicholas Biddle, its president, known as "1Andalusia," its greenhouses, etc., "all on the most splendid scale." Vol. I, 472. Mr. Webster was the protagonist of the policy of a national bank, an d thte leader of the ban k party i n its protracted struggle for existence. His relation in his legislative and professional capacity to the bank, and his views of the various constitutional and public questions involved, are satisfactorily narrated in George Ticknor Curtis' "9Life of Daniel Webster," I, pp 139-151 (as to the National Bank of 1816); pp. 414-428 (as to the renewal of the charter and the President's veto); pp. 470-499 (as to the removal of the deposits, etc.); pp. 490, 544 (as to Benton's Expunging Resolution); Webster, Works (ed. 1851), 1119 35 (speech 1815); Id. 506 (removal Of deposits);1d. 301 469 Osborn v. Bank of United States. charter and unfriendly State legislation gave rise to several constitutional decisions delivered by Chief Justice Marshall of transcendent and lasting importance. One of these - M'Culloch v. Maryland - has already been given in the present volume.1 The following two cases - Osborn v. Bank of the United States and The Bank of the United States v. Planters' Bank of Georgia - are of the weightiest moment. They not only reaffirm the decision in the Maryland Bank case, but decide questions of extensive general importance as to scope of the grant of Federal judicial power made to the United States by the Judiciary Article of the Constitution. There was a strong opposition in some of the States not only to the bank itself, but especially to the power given to the bank in its charter to establish branches in the States without their consent and in defiance of their wishes. Branches were establisbed in several States against legislative remonstrances. The unfriendly feeling in Maryland took the form of a State Stamp Act, passed in 1818, requiring all notes issued by the branch bank in that State to be upon stamped paper of the State. This was probably intended to tax the branch bank in Maryland out of existence. Out of this legislation arose the great Bank Case, so called, of M'Culloch v. Maryland. The decision in that case made in 1819 affirmed the constitutionality of the charter of (bill to recharter); Id. 424 (veto); Id. 435 (constitutionality); Id. IV, 50, 443 (lemovai of deposits). See also Tyler, " Memoir of Taney," 179-224. The net result of this famous conflict of bank and anti-bank seems to have been that the bank gained the legal victories, and Jackson the popular victories, and that the popular victories and theý President's action doomed the bank to failure. 1 Ante, pp. 252-298. Marshall's Constitutional Opinions. 470 the bank and declared unconstitutional the State taxing act of 1818 on the ground that it was a tax upon the operations of a fiscal agency of the United States imposed by the State without the consent of Congress. On February 8, 1819, Ohio passed the taxing act, the validity of which was in question in the case of Osborn v. Bank of the United States. The leading features of that act appear in the statement of the case given below.1 Mr. Clay, in his argument, thus differentiated the legislation of Maryland and Ohio: "But this [the Ohio act] was not, like the law of Maryland, a case of taxation. It was enacted for the purpose of expelling the branches of the bank from the State of Ohio by inflicting penalties amounting to a prohibition;- it is a bill of pains and penalties, the penalties being greater than the entire dividends. It is unequal and unjust, a confiscation, not a tax. The imposition is the same on the branch at Cincinnati with a capital of $1,500,000, with that of Chillicothe which has a capital of only $500,000. If one State can thus expel a branch, another may expel the parent bank, and thus this great institution of the National Government would be extirpated and destroyed by the local governments." 2 Mr. Hammond's argument in support of the State legislation was very able, and he made the several points which are stated seriatim, and discussed and decided in the opinion of Chief Justice Marshall. One of his principal points was that the decree appealed from "assumes that the Bank of the United States is not subject to the taxing power of the State of Ohio, and decides that the law of Ohio is unconstitutional. We ask the court to reconsider so much of their opinion in the case of 1 Infra, p. 475. 9 WWheaton, 795, 796. 471 Osborn v. Bank of United States. M'Culloch v. Maryland as decides that the States have no rightful power to tax the bank. We ask the court to reconsider not the argument of the opinion in M'Culloch v. Maryland but the premises upon which that argument is founded." I Ile thereupon proceeds to urge that banking is a private business, and that the bank is a private concern and not a governmental agency. The court acceded to Mr. Hammond's request, the Chief Justice saying that "many considerations combine to induce a review " of M'Culloch v. Maryland. Doubtless the most important of these was to show by further exposition and reasoning the solid foundations on which the decision in M'Culloch v. Maryland rested. It had in the end the desired effect. By the doctrine defined -ad enforced in Osborn v. The Bank, viz., that a State government cannot tax the franchises or operations of any of the constitutional means employed by the General Government to execute its constitutional powers, "1the people of Ohio," says Chief Justice Shauck of that State, "1 were called back from nullification to obedience."12 The decision in Osborn's case was not, however, immediately relished in Ohio, and the State declared its adherence to the Virginia and Kentucky State rights resolutions of 179S and 1799.1 In Col. Benton's plan of campaign in 1831 against the renewal of the charter of the bank, he determined, he says, "to avoid all settled points, avoid the prýoblem, of constitu19 Wheaton, 765, 766. 2 Marshall Memorial, II, 229. 3 Marshall Memorial, IL, 392, 393 (Phillips), where the action of Georgia and Kentucky, as well as of Ohio, in opposition to the decisions of the Supreme Court, is referred to. See Cohens v. Virginia, ante, pp. 357-365. Marshall's Constitutional Opinions.47 472 tionality," and to attack the bank on other grounds.' This is a recognition of the fact that by this time the, effect of the decision in the -Maryland and Ohio bank cases had been practically to settle the question of the constitutional power of Congress to charter a bank. Nevertheless in the bank veto message of 1832 the President denied the obligatory force of the decision of the Supreme Court as to the constitutionality of the bank charter, and he also insisted that the decision did not cover the whole ground. -But "if," said the President, "the opinion did cover the whole ground of this act, it ought not to control the co-ordinate authorities of this government, each for itself must be guided by its own opinion of the Constitution, each swears to support it as h understands it. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges; and on that point the President is independent of both." Mr. Webster earnestly combated the position of President Jackson that every official who takes an oath to support the Constitution swears to support it "1as he understands it, even thoug()h such understanding con-flicts with the judgment of the Supreme Court on the subject; and, therefore, inasmuch as the Supreme Court had expressly held in a case properly presented that the existing charter of the bank was constitutional, the President had no right to deny that it was a valid law, and therefore ought not to be continued. The case was peculiar. This specific charter of the bank had been held constitutional by the Supreme Court; the question was whether this charter should be renewed, and Mr. Webster's contention was that the President was not justified in making it 'Thirty Years' View, vol. I, p. 187. 473 Osborn v. Bank of United States. a ground of his veto that the charter was unconstitutional, in the face of an express decision of the Supreme Court to the contrary. Mr. Webster considered, says Mr. Curtis, such a doctrine to be revolutionary and disorganizing, since it could be extended to the execution of laws as readily as to their re-enactment or continuance, and would leave every public officer to judge what laws he would carry into effect1 Abstractly it is true that the opinion of the judges has no authority over Congress or the Executive in the sense that it can be directly enforced upon them;2 but if Congress disregards such opinion and passes an act which is, in the judgment of the court, in conflict with the Constitution, or if the President attempts to enforce such an act, and the question of constitutionality arises in a case which comes regularly before the court, the opinion of the court will control, the act of Congress or the action of the Executive to the contrary notwithstanding. This is precisely what was decided in Marbury v. Madison, and such is the settled constitutional law of this country. The power of Congress as respects national banks, as it was decided to exist in the Maryland and Ohio tax cases, is no longer controverted in any quarter or by any party. In fact the present national banking system, whose validity is unquestioned, rests upon the decisions of the Supreme Court in the M'Culloch and Osborn cases. 1 Curtis, "Life of Daniel Webster," I, pp. 418, 419; Webster's Works, III, 29; Cooley, Const. Limitations, 46 and note, 53 and note. 2 Marshall Memorial, Introduction, I, pp. xx-xxiv. See Worcester v. Georgia, infra, and notes. Marshall's Constitutional Opinions.47 474 Osborn and Others v. The Bank of the United States. February Term, 1824. [9 Wheaton's Reports, 738-903.] The propositions of law decided are thus stated by Mr. Justice Curtis in his edition of Decisions of the Supreme Court of the United States: It is not necessary that the record in an equity cause should contain a warrant of attorney to a duly licensed practitioner to appear for and represent a corporation which is the complainant. The charter of the Bank of the United States confers on the bank the right to sue in any Circuit Court of the United States. Such a suit is a case arising-n under a law of the United States, within the meaning of those words in the Constitution; consequently it is within the judicial power of the United States, and Congress could confer upon the Circuit Courts jurisdiction over it. A State law imposing a tax on the operations of the Bank of the United States, or on one of its branches, is unconstitutional. A court of equity may restrain, by injunction, a public officer of a State ftom acting under a void law of a State to destroy a franchise. As the State cannot be joined as a defendant, its agent may be sued alone. And if he has specific moneys and notes wrongfully taken, they may be ordered' to be returned. The answer of one defendant is evidence against another, who comes into the possession of the prop - erty in dispute by succession fromn the former, under 475 475 Osborn v. Bank of United States. such circumstances as to be affected by his equitable liabilities. If money be enjoined in the hands of a party who is thereby prevented from making any use of it, interest is not allowed. The prohibition to sue a State, contained in the Eleventh Amendment of the Constitution, does'not extend to cases in which a State is not made a party on the record, even if the State has the entire ultimate interest in the subject of the suit. The bill in equity in this case was brought in the Circut Court of the United States, in 1819, by the ]Bank of the United States, signed by solicitors of the court, praying an injunction to restrain the defendant Osborn, Auditor of the State of Ohio, from proceeding as he was threatening to do against the bank under an act of the Legislature of Ohio passed February 8, 1819. This act provided for levying and collecting a tax from all banks that might transact banking business in the State without being allowed to do so by the laws thereof. The act, after reciting that the Bank of the United States pursued its operations contrary to a law of the State, enacted that if, after the first day of the following September, the said bank or any other should continue to transact business in the State, it should be liable to a tax of $50,000 on each office of discount and deposit. This tax the act authorized the State Auditor to collect by issuing his warrant and seizing any property he could find. One Harper, who was employed by Osborn to collect the tax, after the bill was filed, and with knowledg-e that an injunction had been allowed, althougph not yet issuedpo ceeded by violence to the bank, seized and took therefrom Marshall's Constitutional Opinions. 476 $100,000 in specie and bank notes belonging to it, which money afterwards came into the hands of Sullivan, State Treasurer, who was made a defendant to the suit. The Circuit Court entered a decree directing the defendants, Osborn and Sullivan, to restore to the bank the sum of $100,000 with interest on $19,830, the amount of specie in the hands of Sullivan. The defendants appealed to the Supreme Court of the United States under the twenty-fifth section of the Judiciary Act. The case was argued on behalf of the State officers by Charles Hammond (9 Wheaton, pp. 744-795), an eminent lawyer of Ohio, and by Henry Clay for the bank (9 Wheaton, V95 -804). At a later date after the argument, the court having expressed the wish that the case should be re-argued upon the point of the constitutionality and effect of the provision in the charter of the bank which authorizes it to sue in the Circuit Courts of the Union, it was on March 11, 1824, again argued upon that point (in connection with the case of The Bank of the United States v. The Planters' Bank of Georgia, in which the same question was involved) by Mr. Clay, Mr. Webster and Mr. Sergeant for the jurisdiction, and by Mr. Harper, Mr. Brown and Mr. Wright against it. The opinion of the court,' delivered by the Chief Justice, 1 The court was constituted as follows: JOHN MARSHALL, Chief Justice. BUSHROD WASHINGTON, WILLIAM JOHNSON, THIOMAS TODD, GABRIELDDUVALAssociate Justiee& GABRIEL DUVALL, JOSEPH STORY, SMITH THOMPSON, Justice Johnson dissented on the point of jurisdiction. Justice Thompson was appointed the 9th of December, 1823, and 477 477 Osborn v. Bank of United States. on the question of jurisdiction and on the merits so far as relates to constitutional points, is as follows: MARSHALL, Chief Justice. At the close of the argument a point was suggested of such vital im- Oiin portance as to induce the court to request Oiin that it might be particularly spoken to. That point is, the right of the bank to sue in the Rgto h akt cours o th UntedStaes.It as eensuRightUoithedbanktos Courts. argued, and ought to be disposed of, before we proceed to the actual exercise. of jurisdiction, by deciding on the rights of the parties. Opinion on the Jurisdictional Question. The appellants contest the jurisdiction of the court on two grounds: 1st. That the act of Congress has not given it. 2d. That, under the Constitution, Congress cannot give it. 1. The first part of the objection depends entirely on the language of the act. The wordsLaggeothac are, that the bank shall be "m iade ableLaggeothac and capable in law" "1to sue and be sued, plead and be impleaded, answer and be answered, defend and be defended, in all State courts having competent jurisdiction, and in any Circuit Court of the United States." These words seem to the court to admit of but one iuterpretation. They cannot be made plainer by explatook his seat on the bench the 10th of February, 1824. He took no part in the decision of causes argued before that day. Mr. Charles Hammond and Mr. Wright appeared for the appellants. Mr. Henry Clay appeared for thle respondents Marshall's Constitutional Opinions. 478 nation. They give, expressly, the right "to sue and be sued" "in every Circuit Court of the United States," and it would be difficult to substitute other terms which would be more direct and appropriate for the purpose. The argument of the appellants is founded on the Appellants' argument opinion of this court in The Bank of founded on opinion in the United States v. Deveaux (5 Cranch, case of Bank of United States v. Deveaux 85).1 In that case it was decided that the former Bank of the United States was not enabled, by the act which incorporated it, to sue in the Federal courts. The words of the third section of that act are, that the bank may " sue and be sued," etc., " in courts of record, or any other place whatsoever." The court was of opinion that these general words, which are used in all acts of incorporation, gave only a general capacity to sue, not a particular privilege to sue in the courts of the United States; and this opinion was strengthened by the circumstance that the ninth rule of the seventh section of the same act subjects the directors, in case of excess in contracting debt, to be sued, in their private capacity, "in any court of record of the United States, or either of them." The express grant of jurisdiction to the Federal courts, in this case, was considered as having some influence on the construction of the general words of the third section, which does not mention those courts. Whether this decision be right or wrong, it amounts only to a declaration that a general capacity in the bank to sue, without mentioning the courts of the Union, may not give a right to sue in those courts. To infer from this that words expressly conferring a right to sue in those courts do not give the right is surely a conclusion which the premises do not warrant. 1 Ante, pp. 166-179. 479 479 Osborn v. Bank of United States. The act of incorporation, then, confers jurisdiction on the Circuit Courts of the United States, if Congress can,confer it. 2. We will now consider the constitutionality of the clause in the act of incorporation which authorizes the bank to sue in the Federal courts. In support of this clause it is said that the legislative, executive, and judicial powers of every well constructed government are co- Constitutionality of clause authorizing bank to sue in the Fedextensive with each other; that is, they eralcors are potentially co-extensive. The Executive department may constitutionally execute every law which the Legislature may constitutionally make, and the Judicial department may receive from the Legislature the power of construing every such law. All governments, which are not extremely defective in their orgoanization, must possess within themselves the means of expounding, as well as enforcing-, their own laws. If we,examine the Constitution of the United States, we find that its framers kept this great political principle in view. The second article vests the whole Executive power in the President; and the third article declares "1that 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." This clause enables the judicial department to receive jurisdiction to the full extent of the Etn fjdca Constitution, laws, and treaties of the power under the ConUnited States, when any question re- siuin specting them shall assume such a form that the judicial power is capable of acting on it. That power is capable of acting only when the subject is submitted to it by a Man-sl-alps Constfi'af.7oial Opinions.48 480 party who asserts his rights in the form prescribed by law. It then becomes a case, and the Constitution declares that the judicial power shall extend to all cases arising under the Constitution, laws, and treaties of the United States. The suit of The IBank of the United States v. Osborn and others is a case, and the question is, whether it arises under a law of the United States? The appellants contend that it does not, because several Jurisdiction of United questions may arise in it which depend States courts in cases on the cgenera principles o h law, depending on general b rlo h principles of law, not on any act of Congress. If this were sufficient to withdraw a case from the jurisdiction of the Federal courts, almost every case, although involving the construction of a law, would be withdrawn; and a clause in the Constitution, relating to a subject of vital importance to the government, and expressed in the most comprehensive terms, would be construed to mean almost nothing. There is scarcely any case every part of which depends on the Constitution, laws, or treaties of the United States. The questions, whether the fact alleged as the foundation of the action be real or fictitious; whether the conduct of the plaintiff has been such as to entitle him to maintain his action, whether his right is barred, whether he has received satisfaction, or has in any manner released his claims, are questions some or all of which may occur in almost every case; and if their existence be sufficient to arrest the jurisdiction of the court, words which seem intended to be as extensive as the Constitution, laws, and treaties of the Union, which seem designed to give the courts of the government the construction of all its acts, so far as they affect the rights of individuals, would be reduced to almost nothing. 4.81 481 Osborn v. Bank of United States. In those cases in which original jurisdiction is given to the Supreme Court, the judicial Orgnal and appellate power of the United States cannot be jourriisdiction of United exercised in its appellate form. In Sae ors every other case the powver is to be exercised in its original or appellate form, or both, as the wisdom of Congress may direct. With the exception of these cases, in which original jurisdiction is griven to this court, there is none, to which the judicial power extends, from which the original jurisdiction of the inferior courts is excluded by the Constitution. Original jurisdiction, so far as the Constitution gives a rule, is co-extensive with the judicial power. We find in the Constitution no prohibition to its exercise in every case in which the judicial power can be exercised. It would be a very bold construction to say that this power could be applied, in its appellate form only, to the most important class of cases to which it is applicable. The Constitution establishes the Supreme Court and defines its jurisdiction. It enumerates cases in which its jurisdiction is original and exclusive; and then defines that which is appellate, but does not insinuate that in any such case the power cannot be exercised in its original form by courts of original jurisdiction. It is not insinuated that the judicial power, in cases depending on the character of the cause, cannot be exercised in the first instance in the courts of the Union, but must first be exercised in the tribunals of the State; tribunals over which the government of the Union has no ade-~ quate control, and which may be closed to any claim asserted under a law of the United States. We perceive, then, no ground on which the proposition can be maintained that Congress is incapable of 81 Marshall's Constitutional Opinions.48 482 giving the Circuit Courts original jurisdiction in any case to which the appellate jurisdiction extends. We ask, then, if it can be sufficient to exclude this jurisdiction that the case involves quesWhere case involveýs construction of Consti- tions depending on general principles? tution and laws of the ý United States, Federal A cause may depend on several quescourts have jurisdiction to determine all tions of fact and law. Some of these questions. may depend on the construction of a law of the United States; others on principles unconnected with that law. If it be a sufficient foundation for jurisdiction that the title or right set up by the party may be defeated by one construction of the Constitution or law of the United States, and sustained by the opposite construction, provided the facts necessary to support the action be made out, then all the other questions must he decided as incidental to this which gives that jurisdiction. Those other questions cannot arrest the proceedings. Under this construction the judicial power of the Union extends effectively and beneficially to that most important class of cases which depend on the character of the cause. On the opposite construction, the judicial power never can be extended to a whole case, as expressed by the Constitution, but to those parts of cases only which present the particular question involving the construction of the Constitution or the law. We say it never can be extended to the whole case, because, if the circumstance that other points are involved in it shall disable Congyress from authorizing the courts of the Union to take jurisdiction of the original cause, it equally disables Congress from authorizing those courts to take jurisdiction of the whole cause, on an appeal, and thus will be restricted to a single question in that cause; and words obviously intended to secure to those who claim. 483 Osborn v. Bank of United Stafes. rights under the Constitution, laws or treaties of the United States, a trial in the Federal courts, will be restricted to the insecure remedy of an appeal upon an insulated point, after it has received that shape which may be given to it by another tribunal into which he is forced against his will. We think, then, that when a question, to which the judicial power of the Union is extended by the Constitution, forms an ingredient of the original cause, it is in the power of Congress to give the Circuit Courts jurisdiction of that cause, although other questions of fact or of law may be involved in it. The case of the bank is, we think, a very strong case of this description. The charter of in- The charter of the corporation not only creates it, but bank is a law of the United States. gives it every faculty which it possesses. The power to acquire rights of any description, to transact business of any description, to make contracts of any description, to sue on those contracts, is given and measured by its charter, and that charter is a law of the United States. This being can acquire no right, make no contract, bring no suit, which is not authorized by a law of the United States. It is not only itself the mere creature of a law, but all its actions and all its rights are dependent on the same law. Can a being, thus constituted, have a case which does not arise literally, as well as substantially, under the law? Take the case of a contract, which is put as the strongest against the bank. When a bank sues, the first question which presents itself, and which lies at the foundation of the cause, is, Has this legal entity a right to sue? Has it a right to come, not into this court particularly, but into any Marshall's Constitutional Opinions. 484 court? This depends on a law of the United States. The bank's right to The next question is, Has this being sue on contract depends on its charter- a right to make this particular cona law of the United States. tract? If this question be decided in the negative, the cause is determined against the plaintiff; and this question, too, depends entirely on a law of the United States. These are important questions, and they exist in every possible case. The right to sue, if decided once, is decided forever; but the power of Congress was exercised antecedently to the first decision on that right, and if it was constitutional then, it cannot cease to be so because the particular question is decided. It may be revived at the will of the party, and most probably would be renewed, were the tribunal to be changed. But the question respecting the right to make a particular contract, or to acquire a particular property, or to sue on account of a particular injury, belongs to every particular case, and may be renewed in every case. The question forms an original ingredient in every cause. Whether it be in fact relied on or not in the defense, it is still a part of the cause, and may be relied on. The right of the plaintiff to sue cannot depend on the defense which the defendant may choose to set up. His right to sue is anterior to that defense, and must depend on the state of things when the action is brought. The questions which the case involves, then, must determine its character, whether those questions be made in the cause or not. The appellants say that the case arises on the contract; but the validity of the contract depends on a law Idem. of the United States, and the plaintiff is compelled, in every case, to show its validity. The case arises emphatically under the law. The act of Congress 485 Osborn v. Bank of United States. is its foundation. The contract could never have been made but under the authority of that act. The act itself is the first ingredient in the case, is its origin, is that from which every other part arises. That other questions may also arise, as the execution of the contract, or its performance, cannot change the case, or give it any other origin than the charter of incorporation. The action still originates in, and is sustained by, that charter. The clause giving the bank a right to sue in the Circuit Courts of the United States stands Illustration: Acts of on the same principle with the acts au- congress authorizing officers of the United thorizing officers of the United States, states to sue in Federal courts. who sue in their own names, to sue in the courts of the United States. The Postmaster-General, for example, cannot sue under that part of the Constitution which gives jurisdiction to the Federal courts in consequence of the character of the party, nor is he authorized to sue by the Judiciary Act. He comes into the courts of the Union under the authority of an act of Congress, the constitutionality of which can only be sustained by the admission that his suit is a case arising under a law of the United States. If it be said that it is such a case, because a law of the United States authorizes the contract, and authorizes the suit, the same reasons exist with respect to a suit brought by the bank. That, too, is such a case; because that suit, too, is itself authorized, and is brought on a contract authorized by a law of the United States. It depends absolutely on that law, and cannot exist a moment without its authority. If it be said that a suit brought by the bank may depend, in fact, altogether on questions unconnected Idem. with any law of the United States, it is equally true with respect to suits brought by the Postmaster Marshall's Constitutional Opinions.48 486 General. The plea in bar may be payment, if the suit be brougrht on a bond, or non assurnpsit, if it be brought on an open account, and no other question may arise than what respects the complete discharge of the demand. Yet the constitutionality of the act authorizing the Postmaster-General to sue in the courts of the United States has never been drawn into question. It is sustained singly by an act of Congress, standing on that construction of the Constitution which asserts the right of the Legislature to,give original jurisdiction to the Circuit Courts in cases arising, under a law of the United States. The clause in the patent law authorizing suits in the Circuit Courts stands, we think, on the same principle. Illstaton CaueýinSuch a suit is a case arising under a ptnlaw authorizing law of the United States. Yet the desut=nCircuit Courts. fendant may not, at the trial, question the validity of the patent, or make any point which requires the construction of an act of Congress. He may rest his defense exclusively on the fact that he has not violated the right of the plaintiff. That this fact becomes the sole question made in the cause cannot oust the jurisdiction of the court, or establish the position that the case does not arise under a law of the United States. It is said that a clear distinction exists between the party and the cause; that the party may originate under a law with which the cause has no conNo resemblance between act incorporat- nection; and that Congress may, with ing the bank and the Z general naturalization the same propriety, give a naturalized law. citizen, who is the mere creature of a law, a right to sue in the courts of the United States, as give that right to the bank. This distinction is not denied; and if the act of Con 487 Osborn v. Bank of United States. gress was a simple act of incorporation, and contained nothing more, it might be entitled to great consideration. But the act does not stop with incorporating the bank. It proceeds to bestow upon the being it has made alt the faculties and capacities which that being possesses. Every act of the bank grows out of this law, and is tested by it. To use the language of the Constitution, every act of the bank arises out of this law. A naturalized citizen is indeed made a citizen under an act of Congress, but the act does not proceed to give, to regulateor to prescribe his capacities. He becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the National Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects 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. He is distinguishable in nothing from a native citizen except so far as the Constitution makes the distinction. The law makes none. There is, then, no resemblance between the act incorporating the bank and the general naturalization law. Upon the best consideration we have been able to bestow on this subject, we are of opin- clause in act of incorporation enabling bank ion that the clause in the act of incor- to sue in United States courts consistent with poration, enabling the bank to sue in the Constitution. the courts of the United States, is consistent with the Constitution, and to be obeyed in all courts. Marshall's Constitutional Opinions.48 488 Opinion on tke Merits. Chief Justice Marshall next goes into the merits of the case; but of the seven points made the last two only are constitutional. All of the propositions of law decided appear in the head-notes of Mr. Justice Curtis, supras. We give the opinion on constitutional points in full: We proceed now to the sixth point made by the appelObjection to jurisdic- lants, which is that, if any case is made tion on ground that in the bill, proper for the interference controversy is between the bank and the State o or hney gis of Ohiounder Eleventh O or ofchney it isagis the AmenmentState of Ohio, in which case the Circuit Court could not exercise jurisdiction. The bill is brought, it is said, for the purpose of protectingf the bank in the exercise of a franchise granted by a law of the United States, which franchise the State of Ohio asserts a right to invade, and is about to invade. It prays the aid of the court to restrain the officers of the State from executing the law. It is, then, a controversy between the bank and the State of Ohio. The interest of the State is direct and immediate, not consequential. The process of the court, though not directed against the State by name, acts directly upon it by restraining, its officers. The process, therefore, is substantially, though not in form, against the State, and the court ought not to proceed without making the State a party. If this cannot be done the court cannot take jurisdiction of the cause. The full pressure of this argument is felt, and the difficulties it presents are acknowledged. The direct interest of the State- in the suit, as brought, is admitted; and had it been in the power of the bank to make it a party, perhaps no decree ought to have been pronouncedl in the cause until the State was before the court. But 489 Osborn v. Bank of United States. this was not in the power of the bank. The Eleventh Amendment of the Constitution has exempted a State from the suits of citizens of other States, or aliens; and the very difficult question is to be decided, whether, in such a case, the court may act upon the agents employed by the State, and on the property in their hands. Before we try this question by the Constitution, it may not be time misapplied, if we pause for a moment, and reflect on the relative situation of the Union with its members, should the objection prevail. A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to cases Power of United States courts to act upon the perfectly clear in themselves; to cases agents employed by % the State and on propwhere the government is in the exer- erty in their hands cise of its best established and most essential powers, as well as to those which may be deemed questionable. It asserts that the agents of a State, alleging the authority of a law void in itself, because repugnant to the Constitution, may arrest the execution of any law in the United States. It maintains that, if a State shall impose a fine or penalty on any person employed in the execution of any law of the United States, it may levy that fine or penalty by a ministerial officer, without the sanction even of its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the government. The carrier of the mail, the collector of the revenue, the marshal of a district, the cases put to illustrate recruiting officer, may all be inhibited, daerudoenil othis under ruinous penalties, from the per- United States courts. formance of their respective duties; the warrant of a ministerial officer may authorize the collection of these penalties, and the person thus obstructed in the perform Marshall's Constitutional Opinions. 490 ance of his duty may indeed resort to his action for damages, after the infliction of the injury, but cannot avail himself of the preventive justice of the Nation to protect him in the performance of his duties. Each member of the Union is capable, at its will, of attacking the Nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs; while the Nation stands naked, stripped of its defensive armor, and incapable of shielding its agent or executing its laws, otherwise than by proceedings which are to take place after the mischief is perpetrated, and which must often be ineffectual, from the inability of the agents to make compensation. These are said to be extreme cases; but the case at bar, had it been put by way of illustration in argument, might have been termed an extreme case; and if a penalty on a revenue officer, for performing his duty, be more obviously wrong than a penalty on the bank, it is a difference in degree, not in principle. Public sentiment would be more shocked by the infliction of a penalty on a public officer, for the performance of his duty, than by the infliction of this penalty on a bank, which, while carrying on the fiscal operations of the government, is also transacting its own business; but, in both cases, the officer levying the penalty acts under a void authority, and the power to restrain him is denied as positively in the one as in the other. The distinction between any extreme case and that which has actually occurred, if, indeed, Power to protect agents SUnite Stats e Uin -o any difference of principle can be supftates toiesist execo posed to exist between them, disappears tion of those laws. when considering the question of jurisdiction; for, if the courts of the United States cannot 491 491 Osborn v. Bank of United States. rightfully protect the agents, who execute every law authorized by the Constitution, from the direct action of State agents in the collection of penalties, they cannot rightfully protect those who execute any law. The question, then, is, whether the Constitution of the United States has provided a tribunal which can peacefully and rightfully protect those who are employed in carrying into execution the laws of the Union from the attempts of a particular State to resist the execution of those laws. The State of Ohio denies the existence of this power, and contends that no preventive proceedings whatever, or proceedings against the very property which may have been seized by the agent of a State, can be sustained against such agrent, because they would be substantially against the State itself, in violation of the Eleventh Amendment of the Constitution. That the courts of the Union cannot entertain a suit brought against a State by an alien, orIsuibrghaant the citizen of another State, is not to an individuial a- suit be controverted. Is a suit, brought against a State? against an individual for any cause whatever, a suit against a State, in the sense of the Constitution? The Eleventh Amendment is the limitation of a power supposed to be granted in the original Eeet mnmn instrument; and to understand accurately the extent of the limitation, it seems proper to define the power that is limited. The words of the Constitution, so far as they respect this question, are, "1Thel judicial power shall extend to controversies between two or more States, between a State and citizens of another State, and between a State and foreign States, citizens, or subjects." Marshall's Coinstitutional Opinions. 492 A subsequent clause distributes the power previously granted, and assigns to the Supreme Court original jurisdiction in those cases in which "a State shall be a party." The words of the Eleventh Amendment are, "The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of a foreign State." The Bank of the United States contends that, in all Do roisinsof hecases in which jurisdiction depends on Eleventh Amendment the character of the party, reference is extend to cases where a State is not a party made to the party on the record, not to on the record?2 one who may be interested, but is not shown by the record to be a party. The appellants admit that the jurisdiction of the court is not ousted by any incidental or consequential interest which a State may have in the decision to be made, but is to be considered as a party where the decision acts directly and immediately upon the State through its officers. If this question were to be determined on the authority of Eng-lish decisions, it is believed that no case can be adduced where any person has been considered as a party who is not made so in the record. But the court will not review those decisions, because, it is thought, a question, growing out of the Constitution of the United States, requires rather an attentive consideration of the words of that instrument than of the decisions of analogous questions by the courts of any other country. Do the provisions, then, of the American Constitution, respectingc controversies to which a State may be a party, extend, on a fair construction of that instrument, to cases in which the State is not a party on the record? 493 Osborn v. Bank of United States. The first in the enumeration is a controversy between two or more States. There are not many questions in which a State would be supposed to take a deeper or more imme- Jurisdiction in cases diate interest than in those which decide between citizens claiming lands under grants on the extent of her territory. Yet the of different States. Constitution, not considering the State as a party to such controversies, if not plaintiff or defendant on the record, has expressly given jurisdiction in those between citizens claiming lands under grants of different States. If each State, in consequence of the influence of a decision on her boundary, had been considered by the framers of the Constitution as a party to that controversy, the express grant of jurisdiction would have been useless. The grant of it certainly proves that the Constitution does not consider the State as a party in such a case. Jurisdiction is expressly granted in those cases only where citizens of the same State claim lands under grants of different States. If the claimants be citizens of different States, the court takes jurisdiction for that reason. Still, the right of the State to grant is the essential point in dispute; and in that point the State is deeply interested. If that interest converts the State into a party, there is an end of the cause; and the Constitution will be construed to forbid the Circuit Courts to take cognizance of questions to which it was thought necessary expressly to extend their jurisdiction, even when the controversy arose between citizens of the same State. We are aware that the application of these cases may be denied, because the title of the State comes on incidentally, and the appellants admit the jurisdiction of the court where its judgment does not act directly upon the property or interests of the State; but we deemed it of some Marshall's Constiitutional Opinions.44 494 importance to show that the framers of the Constitution contemplated the distinction between cases in which a State was interested, and those in which it was a party, and made no provision f or a case of interest without being a party on the record. In cases where a State is a party on the record the question of jurisdiction is decided by inspection. If jurisdiction depend not on this plain fact, but on the interest of the State, what rule has the Constitution given by which this interest is to be measured? If no rule be given, is it to be settled by the court? If so, theicurious anomaly is presented of a court examining the whole testimony of a cause, inquiring, into, and deciding on, the extent of a State's interest, without having a right to exercise any jurisdiction in the case. Can this inquiry be made without the exercise of jurisdiction? The next in enumeration is a controversy between a State and the citizens of another State. Can this case arise if the State be not a party on the Conrovrs bewee arecord? If it can, the question recurs, State and the citizens Whtdgeofierssalbeufof another State: Can htdge fitrs hl esfl this case arise if the cient to change the parties, and arrest State be not a party0 on the record? the proceedin gs against the individual? Controversies respecting boundary have lately existed between Virginia and Tennessee, between Kentucky and Tennessee, and now exist between New York and New Jersey. Suppose, while such a controversy is pending, the collecting officer of one State should seize property for taxes belonging to a man who supposes himself to reside in the other State, and who seeks redress in the Federal court of that State in which the officer resides. The interest of the State is obvious. Yet it is admitted that in such a case the action would lie, because the offil 495 495 Osborn v. Bank of United States. cer might be treated as a trespasser, and the verdict and judgment against him would not act directly on the property of the State. That it would not so act may, perhaps, depend on circumstances. The officer may retain the amount of the taxes in his hands, and, on the proceedings of the State against him, may plead, in bar, the judgment of a court of competent jurisdiction. If this plea ought to be sustained, and it is far from being certain that it ought not, the judgment so pleaded would have acted directly on the revenue of the State in the hands of its officer. And yet the argument admits that the action in such a case would be sustained. But suppose, in such a case, the party conceiving himself to be injured, instead of bri-uging an action sounding in damages, should sue for the specific thing, while yet in possession of the seizing officer. It being admitted, in argument, that the action sounding in damages would lie, we are unable to perceive the line of distinction between that and the action of detinue. Yet the latter action would claim the specific article seized for the tax, and would obtain it, should the seizure be deemed unlawful. It would be tedious to pursue this part of the inquiry farther, and it would be useless, because every person will perceive that the same reasoning is applicable to all the other enumerated controversies to which a State may be a party. The principle may be illustrated by a reference to those other controversies -where jurisdiction depends on the party. But before wve review them, we will notice one where the nature of the controversy is in some degree blended with the character of the party. If a suit be brought against a foreign minister, the Supreme Court alone has original jurisdiction, and this is shown on the record. But suppose a suit to be brought Marshall's Gonstitutional Opinions.49 490' which affects the interest of a foreign minister, or by which Cass her te nt-the person of his secretary, or of his ure of the controversy servant is arrested. The minister does is in some degree blended with the char- not b the mere arrest of his secretary, acter of the party: by Suits against foreign ministers or their serv- or his servant, become a party to this ants. suit, but the actual defendant pleads to the jurisdiction of the court, and asserts his privilege. If the suit affects a foreign minister, it must be dismissed, not because he is a party to it, but because it affects him. The language of the Constitution in the two cases is different. This court can take cognizance of all cases"af fectino-" foreign ministers; and, therefore, jurisdiction does not depend on the party named in the record. But this language changes when the enumeration proceeds to States. Why this change? The answer is obvious. In the case of foreign ministers it was intended, for reasons which all comprehend, to give the National courts jurisdiction over all cases by which they were in any manner affected. In the case of States, whose immediate or remote interests were mixed up with a multitude of cases, and who might be affected in an almost infinite variety of ways, it was intended to give jurisdiction in those cases only to which they were actual parties. In proceeding with the cases in which jurisdiction depends on the character of the party, the first in the enumeration is "1controversies to which the United States shall be a party." IDoes this provision extend to the cases where the United States are not named in the Cases where United States, though not record, but claim, and are actually ennamed in record, are entitled to whole' sub- titled to, the whole subject in controject of controversy vryP Let us examine this question. 497 Osborn v. Bank of United States. Suits brought by the Postmaster-General are for money due to the United States. The nominal Suits by Posmasterplaintiff has no interest in the contro- General versy, and the United States are the only real party. Yet these suits could not be instituted in the courts of the Union, under that clause which gives jurisdiction in all cases to which the United States are a party; and it was found necessary to give the court jurisdiction over them, as being cases arising under a law of the United States. The judicial power of the Union is also extended to controversies between citizens of differControversies between ent States; and it has been decided that citizens of different States: Character of the character of the parties mtist be parties must be shown on record. shown on the record. Does this provision depend on the character of those whose interest is litigated, or of those who are parties on the record? In a suit, for example, brought by or against an executor, the creditors or legatees of his testator are the persons really concerned in interest; but it has never been suspected that, if the executor be a resident of another State, the jurisdiction of the Federal courts could be ousted by the fact that the creditors or legatees were citizens of the same State with the opposite party. The universally received construction in this case is, that jurisdiction is neither given nor ousted by the Illustrat relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record. Why is this construction universal? No case can be imagined in which the existence of an interest out of the party on the record is more unequivocal than in that which has been just stated. Why, then, is it universally admitted that this interest in no manner affects the jurisdiction of the court? The plain and ob82 Marshall's Constitutional Opinions. 498 vious answer is, because the jurisdiction of the court depends not upon this interest, but upon the actual party on the record. Were a State to be the sole legatee, it will not, we presume, be alleged that the jurisdiction of the court, in a suit against the executor, would be more affected by this fact than by the fact that any other person, not suable in the courts of the Union, was the sole legatee. Yet, in such a case, the court would decide directly and immediately on the interest of the State. This principle might be further illustrated by showing that jurisdiction, where it depends on the character of the party, is never conferred in consequence of the existence of an interest in a party not named; and by showing that, under the distributive clause of the second section of the third article, the Supreme Court could never take original jurisdiction in consequence of an interest in a party not named in the record. But the principle seems too well established to require that more time should be devoted to it. It may, we think, be laid down as a rule which adIn all cases where jurisdiction depends on mits of no exception, that, in all cases the party, it is the party named in the where jurisdiction depends on the party, record. it is the party named in the record. Consequently, the Eleventh Amendment, which restrains the jurisdiction granted by the Constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record. The amendment has its full effect if the Constitution be construed as it would have been construed had the jurisdiction of the court never been extended to suits brought against a State by the citizens of another State, or by aliens. The State not being a party on the record, and the 499 499 Osborn v. Bank of United States. court having jurisdiction over those who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court oug~ht to make a decree against the defendants; whether they are to be considered as having a real interest, or as being only nominal parties. In pursuing the arrangement which the appellants have made for the argument of the Tedfnat o caus ths qustin hs alead benomInal parties, but castIsusinhsaraybe have real interest ia considered. The responsibility of the controversy. officers of the State for the money taken out of the bank was admitted, and it was acknowledged that this responsibility might be enforced by the proper action. The objection is to its being enforced against the specific article taken, and by the decree of this court. But it has been shown, we think, that an action of detinue might be maintained for that article, if the bank had possessed the means of describing it, and that the interest of the State would not have been an obstacle to the suit of the bank against the individual in possession of it. The judgment in such a suit might have been enforced had the article been found in possession of the individual defendant. It has been shown that the danger of its being parted with, of its being lost to the plaintiff, and the necessity of a discovery, justified the application to a court of equity. It was in a court of equity alone that the relief would be real, substantial, and effective. The parties must certainly have a real interest in the case, since their personal responsibility is acknowledged, and, if denied, could be demonstrated. It was proper, then, to make a decree against the defendants in the Circuit Court, if the law of the State of Ohio be repugnant to the Constitution, or to a law Marshall's Constitutional Opinions.50 500 of the United States made in pursuance thereof, so as to furnish no authority to those who took, or to those who received, the money for which this suit was instituted. 7. Is that law unconstitutional? Contiutinaityof This point was argued with great law of Ohio taxing ability, and decided by this court, after Bank of United States. mature and deliberate consideration, in the case of M'Culloch v. The State of Maryland. A revision of that opinion has been requested; and many considerations combine to induce a review of it. The foundation of the argument in favor of the right of a State to tax the bank is laid in the supposed character of that institution. The argument supposes the corporation to have been originated for the manag~ement of an individual concern, to be founded upon, contract between individuals, having private trade and private pro-fit for its great end and principal object. If these premises were true, the conclusion drawn from The bank is a public them would be inevitable. This mere corporation created for p'ri vate croain engaged in its own public and national;0oprain purposes business, with its own views, would certainly be subject to the taxing power of the State, as any individual would be; and the casual circumstance of its being employed by the government in the transaction of its fiscal affairs would no more exempt its private business from the operation of that power than it would exempt the private business of any individual employed in the same manner. But the premises are not true. The bank is not considered as a private corporation, whose principal object is individual trade and individual profit; but as a public corporation, created for public and national purposes. That the mere business of Osborn v. Bank of United States. banking is, in its own nature, a private business, and may be carried on by individuals or companies having no political connection with the government, is admitted; but the bank is not such an individual or company. It was not created for its own sake, or for opnoninM'Cullocb private purposes. It has never been V. Maryland. supposed that Congress could create such a corporation. The whole opinion of the court in the case of M'Culloch v. The State of Maryland is founded on, and sustained by, the idea that the bank is an instrument which is "necessary and proper for carrying into effect the powers vested in the government of the United States." It is not an instrument which the government found ready made, and has supposed to be adapted to its purposes; but one which was created, in the form in which it now appears, for national purposes only. It is undoubtedly capable of transacting private as well as public business. While it is the great instrument by which the fiscal operations of the government are effected, it is also trading with individuals for its own advantage. The appellants endeavor to distinguish between this trade and its agency for the public, between its banking operations and those qualities which it possesses in common with every corporation, such as individuality, immortality, etc. While they seem to admit the right to preserve this corporate existence, they deny the right to protect it in its trade and business. If there be anything in this distinction, it would tend to show that so much of the act as in- Distinction between corporates the bank is constitutional, public and private character of bank conbut so much of it as authorizes its bank- sidered. ing operations is unconstitutional. Congress can make the inanimate body, and employ the machine as a de Marshall's Constitutional Opinions.50 502 pository of, and vehicle for, the conveyance of the treasure of the Nation, if it be capable of being so employed, but cannot breathe into it the vital spirit which alone can bring it into useful existence. Let this distinction be considered. Why is it that Congress can incorporate or create a bank? This question was answered in the case of IM'Culloch v. The State of Maryland. It is an instrument which is "necessary and proper" for carrying on the Ie.fiscal operations of government. Can this instrude.ment, on any rational calculation, effect its object unless it be endowed with that faculty of lending and dealing- in money which is conferred by its charter? If it can, if it be as competent to the purposes of governmen t without as with this faculty, there will be much difficulty in sustaining that essential part of the charter. If it cannot, then this faculty is necessary to the legitimate operations of government, and was constitutionally and rightfully engrafted on the institution. It is, in that view of the subject, the vital part of the corporation; it is its soul; and the right to preserve it originates in the same principle with the right to preserve the skeleton or body which it animates. The distinction between destroying what is denominated the corporate franchise, and destroying its vivifying principle, is precisely as incapable of being maintained as a distinction between the right to sentence a human being to death, and a right to sentence him to a total privation of sustenance during life. Deprive a bank of its trade and business, which is its sustenance, and its immortality, if it have that property, will be a very useless attribute. This distinction, then, has no real existence. To tax its faculties, its trade and occupation, is to tax the bank,ý 503 Osborn v. Bank of United States. itself. To destroy or preserve the one is to destroy or preserve the other. It is urged that Congress has not, by this act of incorporation, created the faculty of trading The bank protected in money; that it had anterior exist- against state taxation because it is an instruence, and may be carried on by a pri- mentality of government. vate individual, or company, as well as by a corporation. As this profession or business may be taxed, regulated or restrained when conducted by an individual, it may, likewise, be taxed, regulated or restrained when conducted by a corporation. The general correctness of these propositions need not be controverted. Their particular application to the question before the court is alone to be considered. We do not maintain that the corporate character of the bank exempts its operations from the action of State authority. If an individual were to be endowed with the same faculties, for the same purposes, he would be equally protected in the exercise of those faculties. The operations of the bank are believed not only to yield the compensation for its services to the government, but to be essential to the performance of those services. Idem. Those operations give its value to the currency in which all the transactions of the government are conducted. They are, therefore, inseparably connected with those transactions. They enable the bank to render those services to the Nation for which it was created, and are, therefore, of the very essence of its character as national instruments. The business of the bank constitutes its capacity to perform its functions, as a machine for the money transactions of the government. Its corporate character is merely an incident, which enables it to transact that business more beneficially. Marshall's Constitutional Opinions.50 504 Were the Secretary of the Treasury to be authorized by Ide: llutrtios. law to appoint agencies throughout the Union, to perform the public functions of the bank, and to be endowed with its faculties, as a necessary auxiliary to those functions, the operations of those agents would be as exempt from the control of the States as the bank, and not more so. If, instead of the Secretary of the Treasury, a distinct office were to be created for the purpose, fl~led by a person who should receive, as a compensation for his time, labor, and expense, the profits of the banking business, instead of other emoluments, to be drawn from the treasury, which banking business was essential to the operations of the government, would each State in the Union possess a right to control these operations? The question on which this right would depend must always be, Are these faculties so essential to the fiscal operations of the government as to authorize Congress to confer them? Let this be admitted, and the question, Does the right to preserve them exist? must always be answered in the affirm'ative. Congress was of opinion that these faculties were necPower to conduct bank- essary to enable the bank to perform ing business necessary the services which are exacted from it to enable bank to perform its services to the and for which it was created. This govermentwas certainly a question proper for the consideration of the National Legislature. But were it now to undergo revision, who would have the hardihood to say that, without the employment of a banking capital, those services could be performed? That the exercise of these faculties greatly facilitates the fiscal operations of the government is too obvious for controversy; and who will venture to affirm that the suppression of them would not materially affect those operations, and essen 505 ~O5 Osborn v. Bank of United States. tially 'impair, if not totally destroy, the utility of the machine to the government? The currency which it circulates, by means of its trade with individuals, is believed to make it a more fit instrument for the purposes of government than it could otherwise be; and if this be true, the capacity to carry on this trade is a faculty indispensable to the character and objects of the institution. The appellants admit that, if this faculty be necessary to make the bank a fit instrument for the purposes Idem. of the government, Congress possesses the same power to protect the machine in this, as in its direct -fiscal operations; but they deny that it is necessary to those purposes, and insist that it is granted solely for the benefit of the members of the corporation. Were this proposition to be admitted, all the consequences which are drawn from it might follow. But it is not admitted. The court has already stated its conviction that, without this capacity to trade with individuals, the bank would be a very defective instrument, when considered with a single view to its fitness for the purposes of government. On this point the whole argument rests. It is contended that, admitting Congress to possess the power, this exemption ought to have Exemption of bank been expressly asserted in the act of in- from State control imcorporation; and, not being expressed, plied oug~ht not to be implied by the court. It is not unusual for a legislative act to involve consequences which are not expressed. An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of Con Marshall's Constitutional Opinions. 506 gress to imply, without expressing, this very exemption Illustrations of implied from State control which is said to be exemptions so objectionable in this instance. The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of duty; and yet this protection is not expressed in any act of Congress. It is incidental to, and is implied in, the several acts by which these institutions are created, and is secured to the individuals employed in them by the judicial power alone; that is, the judicial power is the instrument employed bv the government in administering this security. That department has no will in any case. If the sound construction of the act be that it exDuty of court in construing the act of Con- empts the trade of the bank, as being gress. essential to the character of a machine necessary to the fiscal operations of the government, from the control of the States, courts are as much bound to give it that construction as if the exemption had been established in express terms. Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing. When they are said to exercise a discretion it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and when that is discerned it is the duty of the court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect to the will of the Legislature, or, in other words, to the will of the law. The appellants rely greatly on the distinction between 507 607 Osborn v. Bank of United States. the bank and the public institutions, such as the mint or the post-office. The agents in those offices are, it is said, officers of government, and are excluded from a seat in Cong~ress. Not so the directors of the bank. The connection of the government with the bank is likened to that with contractors. It will not be contended that the directors or other officers of the bank are officers of gov- Bank's relation with ermient. But it is contended that, govermlentde o I res b tht ofconwere their resemblance to contractors tractors more perfect than it is, the right of the State to control its operations, if those ýoperations be necessary to its character as a machine employed by the government, cannot be maintained. Can a contractor for supplying a military post with provisions be restrained from making purchases within any State, or from transporting the provisions to the place at which the troops were stationed? or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative. It is true that the property of the contractor may be taxed, as the property of other citizens; and so may the local property of the bank. But we do not admit that the act of purchasing, or of conveying the articles purchased, can be under State control. If the trade of the bank be essential to its character as a machine for the fiscal operations of the government, that trade must be as exempt from State control as the actual conveyance of the public money. Indeed, a tax bears upon the whole machine, as well upon the faculty of collecting and transmitting the money of the Nation as on that of discounting the notes of individuals. No distinction is taken between them. Marshall's Constitutional Opinions. 508 Considering the capacity of carrying on the trade of banking as an important feature in the Court adheres to decision in M'Culloch v. character of this corporation, which Maryland. was necessary to make it a fit instrument for the objects for which it was created, the court adheres to its decision in the case of M'Culloch v. The State of Maryland, and is of opinion that the act of the State of Ohio, which is certainly much more objectionable than that of the State of Maryland, is Act of State of Ohio in question held void repugnant to a law of the United States made in pursuance of the Constitution, and, therefore, void. The counsel for the appellants are too intelligent, and have too much self-respect, to pretend that a void act can afford any protection to the officers who execute it. They expressly admit that it cannot. It being, then, shown, we think conclusively, that the defendants could derive neither authority nor protection from the act which they executed, and that this suit is Power of court to not against the State of Ohio within the pronounce a decree view of the Constitution, the State beagainst the defendants in the cause. ing no party on the record, the only real question in the cause is, whether the record contains sufficient matter to justify the court in pronouncing a decree against the defendants? That this question is attended with great difficulty has not been concealed or denied. But when we reflect that the defendants, Osborn and Harper, are incontestably liable for the full amount of the money taken out of the bank; that the defendant, Currie, is also responsible for the sum received by him, it having come to his hands with full knowledge of the unlawful means by which it was acquired; that the defendant, Sullivan, is also responsible for the sum specifically delivered to him, with notice that it was the prop 509 509 Osborn v. Bank of United States. erty of the bank, unless the form of having made an entry on the books of the treasury can countervail the fact that it was, in truth, kept untouched in a trunk by itself, as a deposit, to await the event of the pending suit respecting it; we may lay it down as a proposition, safely to be affirmed, that all the defendants in the cause were liable in an action at law for the amount of this decree. If the original injunction was properly awarded, for the reasons stated in the preceding part of this opinion, the money having- reached the hands of all those to whom it afterwards came, with notice of that injunction, might be pursued, so long as it remained a distinct deposit, neither mixed with the money of the treasury nor put into circulation. Were it to be admitted that the original injunction was not properly awarded, still the amended and supplemental bill, which brings before the court all the parties who had been concerned in the transaction, was filed after the cause of action had completely accrued. The money of the bank had been taken without authority by some of the defendants, and was detained by the only person who was not an original wrong-doer, in a specific form; so that detinue might have been maintained for it, had it been in the power of the bank to prove the facts which are necessary to establish the identity of the property sued for. Under such circumstances we think a court of equity may afford its aid on the ground that a discovery is "necessary, and also on the same principle that an injunction issues to restrain a person who has fraudulently obtained possession of negotiable notes from putting them into circulation, or a person having the apparent ownership of stock really belonging to another from transferring it. The suit, then, might be as well1 sustained in a court of equity as in a court of law, and Marshall's Constitutional Opinions. 510 the objection that the interests of the State are committed to subordinate agents, if true, is the unavoidable consequence of exemption from being sued - of sovereignty. The interests of the United States are sometimes committed to subordinate agents. It was the case in Hoyt v. Gelston, in the case of The Apollon, and in the case of Doddridge's Lessee v. Thompson and Wright, and in many others. An independent foreign sovereign cannot be sued, and does not appear in court. But a friend of the court comes in, and, by suggestion, gives it to understand that his interests are involved in the controversy. The interests of the sovereign, in such a case, and in every other where he chooses to assert them under the name of the real party to the cause, are as well defended as if he were a party to the record. But his pretensions, where they are not well founded, cannot arrest the right of a party having a right to the thing for which he sues. Where the right is in the plaintiff and the possession in the defendant, the inquiry cannot be stopped by the mere assertion of title in a sovereign. The court must proceed to investigate the assertion and examine the title. In the case at bar, the tribunal established by the Constitution for the purpose of deciding ultimately, in all cases of this description, had solemnly determined that a State law imposing a tax on the Bank of the United States was unconstitutional and void, before the wrong was committed for which this suit was brought. Decree affirmed except as to interest on the coin which the injunction restrained the defendants from using. 511 Osborn v. Bank of United Slates. NOTE. In the foregoing case the court not only reasserted the decision in M'Culloch v. Maryland, as to the constitutionality of a bank charter, and the unconstitutionality of the State taxing act, but also decided the following constitutional points of the greatest importance: 1. The charter of the bank conferred upon it in express terms the right "1to sue and be sued in any Circuit Court of the United States," and it was held in this case that the provision was constitutional, and that under the Constitution it is competent for Congress to make the original jurisdiction of the Circuit Courts co-eN