[1227] I Blackstone, Commentaries 263, (Wendell's ed. 1857).

[1228] II Story, Commentaries, Sec. 1187 (4th ed. 1873).

[1229] 25 Op. Atty. Gen. 105, 108 (1904).

[1230] 40 Op. Atty. Gen. 555 (1948).

[1231] 61 Stat. 405 (1947).

[1232] H.J. Res. 298, 80th Cong., 2d sess. (1948).

[1233] Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox _v._

Wood, 247 U.S. 3 (1918).

[1234] 245 U.S. at 385.

[1235] Ibid. 386-388. The measure was upheld by a State court, Kneedler

_v._ Lane, 45 Pa. 238 (1863).

[1236] Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918)

[1237] Butler _v._ Perry, 240 U.S. 328, 333 (1916).

[1238] 245 U.S. 366 (1918).

[1239] Ibid. 390.

[1240] United States _v._ Williams, 302 U.S. 46 (1937). _See also_ In re

Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890).

[1241] Wissner _v._ Wissner, 338 U.S. 655, 660 (1950).

[1242] McKinley _v._ United States, 249 U.S. 397 (1919).

[1243] Dynes _v._ Hoover, 20 How. 65, 79 (1858).

[1244] Ex parte Milligan, 4 Wall. 2, 123, 138-139 (1866). Ex parte

Quirin, 317 U.S. 1, 40 (1942).

[1245] Wade _v._ Hunter, 336 U.S. 684, 687 (1949).

[1246] Dynes _v._ Hoover, 20 How. 65, 82 (1858).

[1247] Swaim _v._ United States, 165 U.S. 553 (1897); Carter _v._

Roberts, 177 U.S. 496 (1900); Hiatt _v._ Brown, 339 U.S. 103 (1950).

[1248] Mullan _v._ United States, 212 U.S. 516 (1909); Smith _v._

Whitney, 116 U.S. 167, 177 (1886); Hiatt _v._ Brown, 339 U.S. 103

(1950).

[1249] Clark, Emergency Legislation Passed Prior to December 1917, 211

(1918).

[1250] Ibid. 214

[1251] Ibid. 250, 332, 380, 438, 497.

[1252] Ibid. 420, 466, 535, 595, 636, 823. Many of these were soon

suspended or repealed. Ibid. 458, 553, 601, 733.

[1253] Ibid. 482, 543, 963, 969.

[1254] Ibid. 916.

[1255] Ibid. 280.

[1256] Hepburn _v._ Griswold, 8 Wall. 603, 617 (1870).

[1257] Ibid. 626.

[1258] Knox _v._ Lee (Legal Tender Cases), 12 Wall. 457, 540 (1871).

[1259] 40 Stat. 276 (1917).

[1260] Ibid. 272.

[1261] Ibid. 411.

[1262] Ibid. 451 (1918).

[1263] Ibid. 904.

[1264] 55 Stat. 236 (1941).

[1265] 56 Stat. 176 (1942).

[1266] Ibid. 23.

[1267] 57 Stat. 163 (1943).

[1268] Lichter _v._ United States, 334 U.S. 742, 754-756, 765, 766

(1948). _See also_ United States _v._ Bethlehem Steel Corp., 315 U.S.

289, 305 (1942); Clallam County _v._ United States, 263 U.S. 341 (1923);

Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549 (1922).

[1269] Lichter _v._ United States, 334 U.S. 742, 779 (1948).

[1270] 245 U.S. 366, 389 (1918).

[1271] Yakus _v._ United States, 321 U.S. 414, 424 (1944).

[1272] 21 Wall. 73 (1875).

[1273] Ibid. 96-97. _Cf._ United States _v._ Chemical Foundation, 272

U.S. 1 (1926).

[1274] 320 U.S. 81 (1943).

[1275] Ibid. 91-92, 104.

[1276] Ibid. 104.

[1277] 334 U.S. 742 (1948).

[1278] Ibid. 778-779.

[1279] Ibid. 782-783.

[1280] Story Commentaries on the Constitution, II, Sec. 1185 (4th ed.,

1873).

[1281] 297 U.S. 288 (1936).

[1282] 39 Stat. 166 (1916).

[1283] 297 U.S. 288, 327-328 (1936).

[1284] 60 Stat. 755 (1946).

[1285] Stewart _v._ Kahn, 11 Wall. 493, 507 (1871). _See also_ Mayfield

_v._ Richards, 115 U.S. 137 (1885).

[1286] 251 U.S. 146, 163 (1919). _See also_ Ruppert _v._ Caffey, 251

U.S. 264 (1920).

[1287] Block _v._ Hirsh, 256 U.S. 135 (1921).

[1288] Chastleton Corp. _v._ Sinclair, 264 U.S. 543 (1924).

[1289] 333 U.S. 138 (1948). _See also_ Fleming _v._ Mohawk Wrecking &

Lumber Co., 331 U.S. 111 (1947).

[1290] 333 U.S. 138, 143-144 (1948).

[1291] Ludecke _v._ Watkins, 335 U.S. 160, 170 (1948).

[1292] 100 U.S. 158 (1880).

[1293] Ibid. 170.

[1294] 4 Wall. 2 (1866).

[1295] Ibid. 127.

[1296] Ibid. 132, 138.

[1297] 327 U.S. 304 (1946).

[1298] 8 Cr. 110 (1814). _See also_ Conrad _v._ Waples, 96 U.S. 279, 284

(1878).

[1299] Miller _v._ United States, 11 Wall. 268 (1871).

[1300] Stoehr _v._ Wallace, 255 U.S. 239 (1921); Central Union Trust Co.

_v._ Garvan, 254 U.S. 554 (1921); United States _v._ Chemical

Foundation, 272 U.S. 1 (1926); Silesian-American Corp. _v._ Clark, 332

U.S. 469 (1947); Cities Service Co. _v._ McGrath, 342 U.S. 330 (1952).

[1301] The "Siren," 13 Wall. 389 (1871).

[1302] The "Hampton," 5 Wall. 372, 376 (1867).

[1303] The "Paquete Habana," 175 U.S. 677, 700, 711 (1900).

[1304] Block _v._ Hirsh, 256 U.S. 135, 156, 157 (1921).

[1305] Bowles _v._ Willingham, 321 U.S. 503, 519 (1944).

[1306] Ibid. 521.

[1307] 255 U.S. 81 (1921).

[1308] Ibid. 89.

[1309] Schenck _v._ United States, 249 U.S. 47 (1919); Debs _v._ United

States, 249 U.S. 211 (1919); Sugarman _v._ United States, 249 U.S. 182

(1919); Frohwerk _v._ United States, 249 U.S. 204 (1919); Abrams _v._

United States, 250 U.S. 616 (1919).

[1310] 40 Stat. 217 (1917); amended by 40 Stat. 553 (1918).

[1311] 249 U.S. 47 (1919).

[1312] Ibid. 52.

[1313] Gilbert _v._ Minnesota, 254 U.S. 325 (1920).

[1314] Hirabayashi _v._ United States, 320 U.S. 81 (1943).

[1315] Korematsu _v._ United States, 323 U.S. 214 (1944).

[1316] Ex parte Endo, 323 U.S. 283 (1944).

[1317] 1 Stat. 577 (1798).

[1318] Writings of James Madison, VI, 360-361 (Hunt's ed., 1906).

[1319] 40 Stat. 531 (1918).

[1320] 335 U.S. 160 (1948).

[1321] Mitchell _v._ Harmony, 13 How. 115, 134 (1852).

[1322] 13 Wall. 623, 627 (1871).

[1323] 120 U.S. 227 (1887).

[1324] Ibid. 239.

[1325] H.R. Rep. No. 262, 43d Cong., 1st sess., 39-40 (1874).

[1326] United States _v._ Commodities Trading Corp., 339 U.S. 121

(1950); United States _v._ Toronto Nav. Co., 338 U.S. 396 (1949);

Kimball Laundry Co. _v._ United States, 338 U.S. 1 (1949); United States

_v._ Cors, 337 U.S. 325 (1949); United States _v._ John J. Felin & Co.,

334 U.S. 624 (1948); United States _v._ Petty Motor Co., 327 U.S. 372

(1946); United States _v._ General Motors Corp., 323 U.S. 373 (1945).

[1327] Moore _v._ Houston, 3 S. & R. (Pa.) 169 (1817), affirmed in

Houston _v._ Moore, 5 Wheat. 1 (1820).

[1328] Texas _v._ White, 7 Wall. 700 (1869); Tyler _v._ Defrees, 11

Wall. 331 (1871).

[1329] 1 Stat. 424 (1795).

[1330] Martin _v._ Mott, 12 Wheat. 19, 32 (1827).

[1331] Houston _v._ Moore, 5 Wheat. 1 (1820); Martin _v._ Mott, 12

Wheat. 19 (1827).

[1332] Houston _v._ Moore, 5 Wheat. 1, 16 (1820).

[1333] 39 Stat. 166, 197 (1916).--By the act of June 28, 1947 (61 Stat.

191, 192) the age of enlistment in the National Guard was lowered to 17

years.

[1334] United States _v._ Hammond, 1 Cr. C.C. 15 (1801).

[1335] 2 Stat. 103 (1801).

[1336] 2 Stat. 195 (1802).

[1337] 20 Stat. 102 (1878).

[1338] Metropolitan R. Co. _v._ District of Columbia, 132 U.S. 1, 9

(1889).

[1339] District of Columbia _v._ Bailey, 171 U.S. 161 (1898).

[1340] Shoemaker _v._ United States, 147 U.S. 282, 299 (1893).

[1341] Morris _v._ United States, 174 U.S. 196 (1899).

[1342] United States ex rel. Greathouse _v._ Dern, 289 U.S. 352, 354

(1933); Smoot Sand & Gravel Corp. _v._ Washington Airport, 283 U.S. 348

(1931); Maryland _v._ West Virginia, 217 U.S. 577 (1910); Marine R. &

Coal Co. _v._ United States, 257 U.S. 47 (1921); Morris _v._ United

States, 174 U.S. 196 (1899).

[1343] Phillips _v._ Payne, 92 U.S. 130 (1876).

[1344] 1 Stat. 139 (1790).

[1345] United States _v._ Simms, 1 Cr. 252, 256 (1803).

[1346] 2 Stat. 103, 104 (1801). _See_ Tayloe _v._ Thomson, 5 Pet. 358,

368 (1831); Ex parte Watkins, 7 Pet. 568 (1833); Stelle _v._ Carroll, 12

Pet. 201, 205 (1838); Van Ness _v._ Bank of United States, 13 Pet. 17

(1839); United States _v._ Eliason, 16 Pet. 291, 301 (1842).

[1347] Reily _v._ Lamar, 2 Cr. 344, 356 (1805).

[1348] Korn _v._ Mutual Assur. Soc., 6 Cr. 192, 199 (1810).

[1349] Mutual Assur. Soc. _v._ Watts, 1 Wheat. 279 (1816).

[1350] Hepburn _v._ Ellzey, 2 Cr. 445, 452 (1805); _see also_ Sere _v._

Pitot, 6 Cr. 332, 336 (1810); New Orleans _v._ Winter, 1 Wheat. 91, 94

(1816). The District has been held to be a "State" within the terms of a

treaty regulating the inheritance of property within the "States of the

Union." De Geofroy _v._ Riggs, 133 U.S. 258 (1890).

[1351] Barney _v._ Baltimore, 6 Wall. 280 (1868); Hooe _v._ Jamieson,

166 U.S. 395 (1897); Hooe _v._ Werner, 166 U.S. 399 (1897).

[1352] National Mut. Ins. Co. _v._ Tidewater Transfer Co., Inc., 337

U.S. 582 (1949).

[1353] Ibid. 588-600 (opinion of Justice Jackson, with whom Justices

Black and Burton concurred).

[1354] Ibid. 604 (opinion of Justice Rutledge, with whom Justice Murphy

concurred).

[1355] Callan _v._ Wilson, 127 U.S. 540 (1888); Capital Traction Co.

_v._ Hof, 174 U.S. 1 (1899).

[1356] United States _v._ Moreland, 258 U.S. 433 (1922).

[1357] Wight _v._ Davidson, 181 U.S. 371, 384 (1901); _Cf._ Adkins _v._

Children's Hospital, 261 U.S. 525 (1923) overruled by West Coast Hotel

Co. _v._ Parrish, 300 U.S. 379 (1937).

[1358] Kendall _v._ United States ex rel. Stokes, 12 Pet. 524, 619

(1838); Shoemaker _v._ United States, 147 U.S. 282, 300 (1893); Atlantic

Cleaners & Dyers _v._ United States, 286 U.S. 427, 435 (1932);

O'Donoghue _v._ United States 289 U.S. 516, 518 (1933).

[1359] 6 Wheat. 264 (1821).

[1360] Ibid. 428.

[1361] Loughborough _v._ Blake, 5 Wheat. 317 (1820).

[1362] Gibbons _v._ District of Columbia, 116 U.S. 404, 408 (1886);

Welch _v._ Cook, 97 U.S. 541 (1879).

[1363] Loughborough _v._ Blake, 5 Wheat. 317, 320 (1820); Heald _v._

District of Columbia, 259 U.S. 114 (1922).

[1364] Thompson _v._ Roe ex dem. Carroll, 22 How. 422, 435 (1860);

Stoutenburgh _v._ Hennick, 129 U.S. 141, 147 (1889).

[1365] Willard _v._ Presbury, 14 Wall. 676, 680 (1870); Briscoe _v._

Rudolph, 221 U.S. 547 (1911).

[1366] Washington Market Co. _v._ District of Columbia, 172 U.S. 361,

367 (1899).

[1367] Mattingly _v._ District of Columbia, 97 U.S. 687, 690 (1878).

[1368] 129 U.S. 141, 148 (1889).

[1369] Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923).

[1370] O'Donoghue _v._ United States, 289 U.S. 516 (1933).

[1371] Embry _v._ Palmer, 107 U.S. 3 (1883).

[1372] James _v._ Dravo Contracting Co., 302 U.S. 134, 143 (1937).

[1373] Battle _v._ United States, 209 U.S. 36 (1908).

[1374] Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929).

[1375] James _v._ Dravo Contracting Co, 302 U.S. 134, 143 (1937).

[1376] Collins _v._ Yosemite Park Co., 304 U.S. 518, 530 (1938).

[1377] Ibid. 528.

[1378] Battle _v._ United States, 209 U.S. 36 (1908); Johnson _v._

Yellow Cab Co., 321 U.S. 383 (1944); Bowen _v._ Johnston, 306 U.S. 19

(1939).

[1379] Surplus Trading Co. _v._ Cook, 281 U.S. 647 (1930).

[1380] Western Union Teleg. Co. _v._ Chiles, 214 U.S. 274 (1909);

Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929); Pacific Coast Dairy

_v._ Dept. of Agri., 318 U.S. 285 (1943).

[1381] Chicago, R.I. & P.R. Co. _v._ McGlinn, 114 U.S. 542, 545 (1885);

James Stewart & Co. _v._ Sadrakula, 309 U.S. 94 (1940).

[1382] Palmer _v._ Barrett, 162 U.S. 399 (1896).

[1383] United States _v._ Unzeuta, 281 U.S. 138 (1930).

[1384] Benson _v._ United States, 146 U.S. 325, 331 (1892).

[1385] Palmer _v._ Barrett, 162 U.S. 399 (1896).

[1386] S.R.A., Inc. _v._ Minnesota, 327 U.S. 558, 564 (1946).

[1387] Ibid. 570, 571.

[1388] Fort Leavenworth R. Co. _v._ Lowe, 114 U.S. 525, 532 (1885);

United States _v._ Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading

Co. _v._ Cook, 281 U.S. 647, 652 (1930).

[1389] United States _v._ Cornell, 25 Fed. Cas. No. 14,867 (1819).

[1390] James _v._ Dravo Contracting Co., 302 U.S. 134, 145 (1937).

[1391] Silas Mason Co. _v._ Tax Commission of Washington, 302 U.S. 186

(1937). _See also_ Atkinson _v._ State Tax Commission, 303 U.S. 20

(1938).

[1392] 4 Wheat. 316 (1819).

[1393] Ibid. 420. This decision had been clearly foreshadowed fourteen

years earlier by Marshall's opinion in United States _v._ Fisher, 2 Cr.

358, 396 (1805). Upholding an act which gave priority to claims of the

United States against the estate of a bankrupt he wrote: "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."

[1394] _See_ pp. 74-82, _supra_.

[1395] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). _See also_ Missouri

_v._ Holland, 252 U.S. 416 (1920).

[1396] _See_ p. 426, _supra_.

[1397] Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How.

272, 281 (1856).

[1398] Kohl _v._ United States, 91 U.S. 367, 373 (1876); United Slates

_v._ Fox, 94 U.S. 315, 320 (1877).

[1399] _See_ pp. 110-117, 266-267.

[1400] United States _v._ Fox, 95 U.S. 670, 672 (1878); United States

_v._ Hall, 98 U.S. 343, 357 (1879); United States _v._ Worrall, 2 Dall.

384, 394 (1790); McCulloch _v._ Maryland, 4 Wheat. 316 (1819). That this

power has been freely exercised is attested by the 180 pages of the

United States Code (1950 ed.) devoted to Title 18, entitled "Criminal

Code and Criminal Procedure." In addition numerous regulatory measures

prescribe criminal penalties for infractions thereof.

[1401] Ex parte Carll, 106 U.S. 521 (1883).

[1402] United States _v._ Marigold, 9 How. 560, 567 (1850).

[1403] Logan _v._ United States, 144 U.S. 263 (1892).

[1404] United States _v._ Barnow, 239 U.S. 74 (1915).

[1405] Ex parte Yarbrough, 110 U.S. 651 (1884); United States _v._

Waddell, 112 U.S. 76 (1884); In re Quarles, 158 U.S. 532, 537 (1895);

Motes _v._ United States, 178 U.S. 458 (1900); United States _v._

Mosley, 238 U.S. 383 (1915). _See also_ Rakes _v._ United States, 212

U.S. 55 (1909).

[1406] Ex parte Curtis, 106 U.S. 371 (1882).

[1407] The Alien Registration Act of 1940, 54 Stat. 670, 18 U.S.C.A.

Sec. 2385.

[1408] McCulloch _v._ Maryland, 4 Wheat. 316, 407 (1819).

[1409] Osborn _v._ Bank of the United States, 9 Wheat. 738, 862 (1824).

_See also_ Pittman _v._ Home Owners' Loan Corp., 308 U.S. 21 (1939).

[1410] First Nat. Bank _v._ Fellows ex rel. Union Trust Co., 244 U.S.

416 (1917); Burnes Nat. Bank _v._ Duncan, 265 U.S. 17 (1924).

[1411] Smith _v._ Kansas City Title and Trust Co., 255 U.S. 180 (1921).

[1412] Juilliard _v._ Greenman, 110 U.S. 421, 449 (1884).

[1413] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869).

[1414] Juilliard _v._ Greenman, 110 U.S. 421 (1884). _See also_ Legal

Tender Cases, 12 Wall. 457 (1871).

[1415] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240, 303 (1935).

[1416] Pacific Railroad Removal Cases (Union P.R. Co. _v._ Myers), 115

U.S. 1, 18 (1885); California _v._ Central P.R. Co., 127 U.S. 1, 39

(1888).

[1417] Luxton _v._ North River Bridge Co., 153 U.S. 525 (1894).

[1418] Clallam County _v._ United States, 263 U.S. 341 (1923).

[1419] Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549

(1922). In 1944, the Congressional Joint Committee on Nonessential

Federal Expenditures reported that there were then in existence one

hundred government corporations, including subsidiaries and

quasi-private corporations in which the Government had some special

contractual or proprietary interest. S. Doc. No. 227, 78th Cong., 2d

sess. 2 (1944).

[1420] Rhode Island _v._ Massachusetts, 12 Pet. 657, 721 (1838).

[1421] Tennessee _v._ Davis, 100 U.S. 257, 263 (1880).

[1422] Chicago & Northwestern R. Co. _v._ Whitton, 13 Wall. 270, 287

(1872).

[1423] Embry _v._ Palmer, 107 U.S. 3 (1883).

[1424] Bank of United States _v._ Halstead, 10 Wheat. 51, 53 (1825).

[1425] United States Exp. Co. _v._ Kountze Bros., 8 Wall. 342, 350

(1860).

[1426] Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929).

[1427] 43 Stat. 5 (1924). _See_ Sinclair _v._ United States, 279 U.S.

263 (1929).

[1428] Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940).

[1429] Pope _v._ United States, 323 U.S. 1 (1944).

[1430] Detroit Trust Company _v._ The "Thomas Barium," 293 U.S. 21

(1934).

[1431] Knickerbocker Ice Co. _v._ Stewart, 253 U.S. 149 (1920);

Washington _v._ Dawson & Co., 264 U.S. 219 (1924).

[1432] Barron _v._ Baltimore, 7 Pet. 243 (1833); Morgan's L. & T.R. &

S.S. Co. _v._ Louisiana Board of Health, 118 U.S. 455, 467 (1886).

[1433] Munn _v._ Illinois, 94 U.S. 113, 135 (1877); Johnson _v._ Chicago

& P. Elevator Co., 119 U.S. 388, 400 (1886).

[1434] 19 How. 393, 411 (1857).

[1435] Gasquet _v._ Lapeyre, 242 U.S. 367 (1917).

[1436] 1 Stat. 73, 81 (1789).

[1437] Ex parte Watkins, 3 Pet. 193, 202 (1830).

[1438] Ex parte Bollman, 4 Cr. 75, 101 (1807).

[1439] Price _v._ Johnston, 334 U.S. 266, 282 (1948).

[1440] United States _v._ Smith, 331 U.S. 469, 475 (1947).

[1441] Gusik _v._ Schilder, 339 U.S. 977 (1950).

[1442] Frank _v._ Mangum, 237 U.S. 309, 330 (1915).

[1443] 1 Stat. 73, 81 (1789).

[1444] Ex parte Watkins, 3 Pet. 193, 202 (1830); Ex parte Kearney, 7

Wheat. 38 (1822).

[1445] 14 Stat. 385 (1867).

[1446] Frank _v._ Mangum, 237 U.S. 309, 331 (1915).

[1447] Ex parte Bollman, 4 Cr. 75 (1807).

[1448] Adams _v._ United States ex rel. McCann, 317 U.S. 269, 274

(1942); Glasgow _v._ Moyer, 225 U.S. 420, 428 (1912); Matter of Gregory,

219 U.S. 210, 213 (1911).

[1449] Adams _v._ United States ex rel. McCann, 317 U.S. 269, 274

(1942).

[1450] Walker _v._ Johnston, 312 U.S. 275 (1941); Waley _v._ Johnston,

316 U.S. 101 (1942).

[1451] Ex parte Milligan, 4 Wall. 2, 110 (1866).

[1452] McNally _v._ Hill, 293 U.S. 131 (1934).

[1453] Goto _v._ Lane, 265 U.S. 393 (1924).

[1454] Salinger _v._ Loisel, 265 U.S. 224 (1924).

[1455] Wong Doo _v._ United States, 265 U.S. 239 (1924).

[1456] Price _v._ Johnston, 334 U.S. 266, 294 (1948).

[1457] Corwin, The President, Office and Powers, 178 (3d ed., 1948).

[1458] Ex parte Bollman, 4 Cr. 75, 101 (1807).

[1459] Messages and Papers of the Presidents, VII, 3219 (1897).

[1460] Fed. Cas. No. 9, 487 (1861).

[1461] 10 Op. Atty. Gen. 74, 89 (1861-1863).

[1462] 12 Stat. 755 (1863).

[1463] 4 Wall. 2 (1866).

[1464] Ibid. 114.

[1465] Story, Commentaries on the Constitution, II, Sec. 1344 (4th ed.,

1873).

[1466] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867).

[1467] United States _v._ Lovett, 328 U.S. 303, 315 (1946).

[1468] Ex parte Garland, 4 Wall. 333, 377 (1867).

[1469] United States _v._ Lovett, 328 U.S. 303 (1946).

[1470] Story, Commentaries on the Constitution, II, Sec. 1345.

[1471] 3 Dall. 386, 393 (1798).

[1472] Bankers Trust Co. _v._ Blodgett, 260 U.S. 647, 652 (1923).

[1473] Burgess _v._ Salmon, 97 U.S. 381 (1878).

[1474] Calder _v._ Bull, 3 Dall. 386, 390 (1798); Ex parte Garland, 4

Wall. 333, 377 (1867); Burgess _v._ Salmon, 97 U.S. 381, 384 (1878).

[1475] United States _v._ Powers, 307 U.S. 214 (1939).

[1476] Neely _v._ Henkel, 180 U.S. 109, 123 (1901). _Cf._ In re

Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy);

Hirota _v._ MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of

Justice Douglas).

[1477] Ex parte Garland, 4 Wall. 333 (1867).

[1478] Murphy _v._ Ramsey, 114 U.S. 15 (1885).

[1479] Mahler _v._ Eby, 264 U.S. 32 (1924); Bugajewitz _v._ Adams, 228

U.S. 585 (1913).

[1480] Johannessen _v._ United States, 225 U.S. 227 (1912).

[1481] Cook _v._ United States, 138 U.S. 157, 183 (1891).

[1482] Calder _v._ Bull, 3 Dall. 386, 390 (1798).

[1483] Hopt _v._ Utah, 110 U.S. 574, 589 (1884).

[1484] 157 U.S. 429, 573 (1895).

[1485] 2 Madison, The Constitutional Convention, 208 (Hunt's ed., 1908).

[1486] 3 Dall. 171 (1796).

[1487] 7 Hamilton's Works, 845, 848 (Hamilton's ed., 1851). "If the

meaning of the word _excise_ is to be sought in the British statutes, it

will be found to include the duty on carriages, which is there

considered as an _excise_, and then must necessarily be uniform and

liable to apportionment; consequently, not a direct tax." Ibid.

[1488] 4 Annals of Congress, 730 (1794); 2 Madison's Writings, 14,

(Library of Congress ed., 1865) (Letter to Thomas Jefferson, May 11,

1794).

[1489] 3 Dall. 171, 177 (1796).

[1490] Pacific Ins. Co. _v._ Soule, 7 Wall. 433 (1869).

[1491] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869).

[1492] Scholey _v._ Rew, 23 Wall. 331 (1875).

[1493] Springer _v._ United States, 102 U.S. 586 (1881).

[1494] Ibid. 602.

[1495] 157 U.S. 429 (1895); 158 U.S. 601 (1895).

[1496] 28 Stat. 509 (1894).

[1497] Stanton _v._ Baltic Mining Co., 240 U.S. 103 (1916); Knowlton

_v._ Moore, 178 U.S. 41, 80 (1900).

[1498] Nicol _v._ Ames, 173 U.S. 509 (1899).

[1499] Knowlton _v._ Moore, 178 U.S. 41 (1900).

[1500] Patton _v._ Brady, 184 U.S. 608 (1902).

[1501] 192 U.S. 363 (1904).

[1502] Ibid. 370.

[1503] 192 U.S. 397 (1904).

[1504] 220 U.S. 107 (1911).

[1505] 240 U.S. 103 (1916).

[1506] Ibid. 114.

[1507] 232 U.S. 261 (1914).

[1508] New York Trust Co. _v._ Eisner, 256 U.S. 345, 349 (1921).

[1509] Phillips _v._ Dime Trust & Safe Deposit Co., 284 U.S. 160 (1931).

[1510] Tyler _v._ United States, 281 U.S. 497 (1930).

[1511] Fernandez _v._ Wiener, 326 U.S. 340 (1945).

[1512] Chase National Bank _v._ United States, 278 U.S. 327 (1929).

[1513] Bromley _v._ McCaughn, 280 U.S. 124, 136 (1929). _See also_

Helvering _v._ Bullard, 303 U.S. 297 (1938).

[1514] Bromley _v._ McCaughn, 280 U.S. 124, 140 (1929).

[1515] Loughborough _v._ Blake, 5 Wheat. 317 (1820).

[1516] De Treville _v._ Smalls, 98 U.S. 517, 527 (1879).

[1517] Turpin & Bro. _v._ Burgess, 117 U.S. 504, 507 (1886). _Cf._ Almy

_v._ California, 24 How. 169, 174 (1861).

[1518] Dooley _v._ United States, 183 U.S. 151, 154 (1901).

[1519] Cornell _v._ Coyne, 192 U.S. 418, 428 (1904); Turpin & Bro. _v._

Burgess, 117 U.S. 504, 507 (1886).

[1520] Spalding & Bros. _v._ Edwards, 262 U.S. 66 (1923).

[1521] Thompson _v._ United States, 142 U.S. 471 (1892).

[1522] Peck & Co. _v._ Lowe, 247 U.S. 165 (1918); National Paper & Type

Co. _v._ Bowers, 266 U.S. 373 (1924).

[1523] Fairbank _v._ United States, 181 U.S. 283 (1901).

[1524] United States _v._ Hvoslef, 237 U.S. 1 (1915).

[1525] Thames & Mersey Ins. Co. _v._ United States, 237 U.S. 19 (1915).

[1526] Pace _v._ Burgess, 92 U.S. 372 (1876); Turpin & Bro. _v._

Burgess, 117 U.S. 504, 505 (1886).

[1527] Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284

U.S. 125, 131 (1931); Pennsylvania _v._ Wheeling & Belmont Bridge Co.,

18 How. 421, 433 (1856); South Carolina _v._ Georgia, 93 U.S. 4 (1876).

In Williams _v._ United States, 255 U.S. 336 (1921) the argument that an

act of Congress which prohibited interstate transportation of liquor

into States whose laws prohibited manufacture or sale of liquor for

beverage purposes was repugnant to this clause was rejected as plainly

wanting in merit.

[1528] Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284

U.S. 125, 132 (1931).

[1529] Smith _v._ Turner (Passenger Cases), 7 How. 283, 414 (1849)

(opinion of Justice Wayne); _cf._ Cooley _v._ Board of Port Wardens, 12

How. 299, 314 (1851).

[1530] Morgan's L. & T.R. & S.S. Co. _v._ Louisiana Bd. of Health, 118

U.S. 455, 467 (1886). _See also_ Munn _v._ Illinois, 94 U.S. 113, 135

(1877); Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388, 400

(1886).

[1531] 1 Stat. 53, 54 (1789).

[1532] Thompson _v._ Darden, 198 U.S. 310 (1905).

[1533] Alaska _v._ Troy, 258 U.S. 101 (1922).

[1534] Cincinnati Soap Co. _v._ United States, 301 U.S. 308, 321 (1937);

Knote _v._ United States, 95 U.S. 149, 154 (1877).

[1535] United States _v._ Price, 116 U.S. 43 (1885); United States _v._

Realty Co., 163 U.S. 427, 439 (1896); Allen _v._ Smith, 173 U.S. 389,

393 (1899).

[1536] Hart _v._ United States, 118 U.S. 62, 67 (1886).

[1537] 32 Stat. 388 (1902).

[1538] Cincinnati Soap Co. _v._ United States, 301 U.S. 308, 322 (1937).

[1539] Reeside _v._ Walker, 11 How. 272 (1851).

[1540] United States _v._ Klein, 13 Wall. 128 (1872).

[1541] Knote _v._ United States, 95 U.S. 149, 154 (1877); Austin _v._

United States, 155 U.S. 417, 427 (1894).

[1542] Hart _v._ United States, 118 U.S. 62, 67 (1886).

[1543] 13 Op. Atty. Gen. 538 (1871).

[1544] Williams _v._ Bruffy, 96 U.S. 176, 183 (1878).

[1545] 14 Pet. 540 (1840).

[1546] United States _v._ California, 332 U.S. 19 (1947).

[1547] 313 U.S. 69 (1941).

[1548] Ibid. 78-79.

[1549] Craig _v._ Missouri, 4 Pet. 410, 425 (1830); Byrne _v._ Missouri,

8 Pet. 40 (1834).

[1550] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Chaffin _v._

Taylor, 116 U.S. 567 (1886).

[1551] Houston & T.C.R. Co. _v._ Texas, 177 U.S. 66 (1900).

[1552] Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837).

[1553] Darrington _v._ Bank of Alabama, 13 How. 12, 15 (1851); Curran

_v._ Arkansas, 15 How. 304, 317 (1853).

[1554] Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837).

[1555] Woodruff _v._ Trapnall, 10 How. 190, 205 (1851).

[1556] Legal Tender Cases, 110 U.S. 421, 446 (1884).

[1557] Gwin _v._ Breedlove, 2 How. 29, 38 (1844). _See also_ Griffin

_v._ Thompson, 2 How. 244 (1844).

[1558] Farmers & Merchants Bank _v._ Federal Reserve Bank, 262 U.S. 649,

659 (1923).

[1559] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867); Klinger _v._

Missouri, 13 Wall. 257 (1872); Pierce _v._ Carskadon, 16 Wall. 234, 239

(1873). _See_ p. 317, _supra_, and p. 327, _post_.

[1560] Calder _v._ Bull, 3 Dall. 386, 390 (1798); Watson _v._ Mercer, 8

Pet. 88, 110 (1834); Baltimore & S.R. Co. _v._ Nesbit, 10 How. 395, 401

(1850); Carpenter _v._ Pennsylvania, 17 How. 456, 463 (1855); Loche _v._

New Orleans, 4 Wall. 172 (1867); Orr _v._ Gilman, 183 U.S. 278, 285

(1902); Kentucky Union Co. _v._ Kentucky, 219 U.S. 140 (1911).

[1561] Frank _v._ Mangum, 237 U.S. 300, 344 (1915); Ross _v._ Oregon,

227 U.S. 150, 161 (1913).

[1562] Jaehne _v._ New York, 128 U.S. 189, 190 (1888).

[1563] Rooney _v._ North Dakota, 196 U.S. 319, 325 (1905).

[1564] Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915).

[1565] Samuels _v._ McCurdy, 267 U.S. 188 (1925).

[1566] Hawker _v._ New York, 170 U.S. 189, 190 (1898). _See also_ Reetz

_v._ Michigan, 188 U.S. 505, 509 (1903); Lehmann _v._ State Board of

Public Accountancy, 263 U.S. 394 (1923).

[1567] Cummings _v._ Missouri, 4 Wall. 277, 316 (1867).

[1568] Pierce _v._ Carskadon, 16 Wall. 234 (1873).

[1569] Lindsey _v._ Washington, 301 U.S. 397 (1937).

[1570] Kring _v._ Missouri, 107 U.S. 221 (1883).

[1571] Holden _v._ Minnesota, 137 U.S. 483, 491 (1890).

[1572] Ex parte Medley, 134 U.S. 160, 171 (1890).

[1573] Gryger _v._ Burke, 334 U.S. 728 (1948); McDonald _v._

Massachusetts, 180 U.S. 311 (1901); Graham _v._ West Virginia, 224 U.S.

616 (1912).

[1574] Malloy _v._ South Carolina, 237 U.S. 180 (1915).

[1575] Rooney _v._ North Dakota, 196 U.S. 319, 324 (1905).

[1576] Gibson _v._ Mississippi, 162 U.S. 565, 590 (1896).

[1577] Duncan _v._ Missouri, 152 U.S. 377, 382 (1894).

[1578] Gut _v._ Minnesota, 9 Wall. 35, 37 (1870).

[1579] Duncan _v._ Missouri, 152 U.S. 377 (1894).

[1580] Mallett _v._ North Carolina, 181 U.S. 589, 593 (1901).

[1581] Gibson _v._ Mississippi, 162 U.S. 565, 588 (1896).

[1582] Beazell _v._ Ohio, 269 U.S. 167 (1925).

[1583] Thompson _v._ Missouri, 171 U.S. 380, 381 (1898).

[1584] Thompson _v._ Utah, 170 U.S. 343 (1898).

[1585] Dodge _v._ Woolsey, 18 How. 331 (1856); Railroad Co. _v._

McClure, 10 Wall. 511 (1871); New Orleans Gaslight Co. _v._ Louisiana

Light & Heat Producing & Mfg. Co., 115 U.S. 650 (1885); Bier _v._

McGehee, 148 U.S. 137, 140 (1893).

[1586] New Orleans Waterworks Co. _v._ Rivers, 115 U.S. 674 (1885);

Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1 (1898); Vicksburg

_v._ Vicksburg Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast Line

R. Co. _v._ Goldsboro, 232 U.S. 548 (1914); Cuyahoga River Power Co.

_v._ Akron, 240 U.S. 462 (1916).

[1587] The above; _also_ Grand Trunk Western R. Co. _v._ Railroad

Commission, 221 U.S. 400 (1911); Louisville & N.R. Co. _v._ Garrett, 231

U.S. 298 (1913); Appleby _v._ Delaney, 271 U.S. 403 (1926).

[1588] Central Land Co. _v._ Laidley, 159 U.S. 103 (1895). _See also_

New Orleans Waterworks Co. _v._ Louisiana Sugar Ref. Co., 125 U.S. 18

(1888); Hanford _v._ Davies, 163 U.S. 273 (1896); Ross _v._ Oregon, 227

U.S. 150 (1913); Detroit United R. Co. _v._ Michigan, 242 U.S. 238

(1916); Long Sault Development Co. _v._ Call, 242 U.S. 272 (1916); McCoy

_v._ Union Elev. Co., 247 U.S. 354 (1918); Columbia R. Gas & E. Co. _v._

South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. _v._ Flanagan, 263

U.S. 444 (1924).

[1589] Jefferson Branch Bank _v._ Skelly, 1 Bl. 436, 443 (1862); Bridge

Proprietors _v._ Hoboken Co., 1 Wall. 116, 145 (1863); Wright _v._

Nagle, 101 U.S. 791, 793 (1880); and McGahey _v._ Virginia, 135 U.S.

662, 667 (1890); Scott _v._ McNeal, 154 U.S. 34, 45 (1894); Stearns _v._

Minnesota, 179 U.S. 223, 232-233 (1900); Coombes _v._ Getz, 285 U.S.

434, 441 (1932); Atlantic C.L.R. Co. _v._ Phillips, 332 U.S. 168, 170

(1947).

[1590] McCullough _v._ Virginia, 172 U.S. 102 (1898); Houston & Texas

Central R.R. Co. _v._ Texas, 177 U.S. 66, 76, 77 (1900); Hubert _v._ New

Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. _v._ Louisiana,

233 U.S. 362, 376 (1914); Louisiana Ry. & Nav. Co. _v._ New Orleans, 235

U.S. 164, 171 (1914).

[1591] State Bank of Ohio _v._ Knoop, 16 How. 369 (1854), and Ohio Life

Insurance & Trust Co. _v._ Debolt, 16 How. 416 (1854) are the leading

cases. _See also_ Jefferson Branch Bank _v._ Skelly, 1 Bl. 436 (1862);

Louisiana _v._ Pilsbury, 105 U.S. 278 (1882); McGahey _v._ Virginia, 135

U.S. 662 (1890); Mobile & Ohio R.R. Co. _v._ Tennessee, 153 U.S. 486

(1894); Bacon _v._ Texas, 163 U.S. 207 (1896); McCullough _v._ Virginia,

172 U.S. 102 (1898).

[1592] Gelpcke _v._ Dubuque, 1 Wall. 175, 206 (1864); Havemeyer _v._

Iowa County, 3 Wall. 294 (1866); Thompson _v._ Lee County, 3 Wall. 327

(1866); Kenosha _v._ Lamson, 9 Wall. 477 (1870); Olcott _v._ Fond du Lac

County, 16 Wall. 678 (1873); Taylor _v._ Ypsilanti, 105 U.S. 60 (1882);

Anderson _v._ Santa Anna, 116 U.S. 356 (1886); Wilkes County _v._ Coler,

180 U.S. 506 (1901).

[1593] Great Southern Fire Proof Hotel Co. _v._ Jones, 193 U.S. 532, 548

(1904).

[1594] Sauer _v._ New York, 206 U.S. 536 (1907); Muhlker _v._ New York &

H.R. Co., 197 U.S. 544, 570 (1905).

[1595] Tidal Oil Company _v._ Flanagan, 263 U.S. 444, 450, 451-452

(1924).

[1596] Walker _v._ Whitehead, 16 Wall. 314 (1873); Wood _v._ Lovett, 313

U.S. 362, 370 (1941).

[1597] 4 Wheat. 122, 197 (1819); _see also_ Curran _v._ Arkansas, 15

How. 304 (1853).

[1598] 4 Wheat. 518 (1819).

[1599] Ibid. 627.

[1600] 290 U.S. 398 (1934).

[1601] Ibid. 431.

[1602] Ibid. 435.

[1603] "The _Blaisdell_ decision represented a realistic appreciation of

the fact that ours is an evolving society and that the general words of

the contract clause were not intended to reduce the legislative branch

of government to helpless impotency." Justice Black, in Wood _v._

Lovett, 313 U.S. 362, 383 (1941).

[1604] Wright, The Contract Clause of the Constitution, 95 (Cambridge,

1938).

[1605] Farrand, Records, III, 548.

[1606] The Federalist, No. 44.

[1607] Works of James Wilson, I, 567, (Andrews, ed., 1896).

[1608] 2 Dall. 410 (1793).

[1609] Ogden _v._ Saunders, 12 Wheat. 213, 338 (1827).

[1610] 6 Cr. 87 (1810).

[1611] In Ware _v._ Hylton, 3 Dall. 199 (1797) the Court had earlier set

aside an act of Virginia as being in conflict with the Treaty of Peace,

of 1783, with Great Britain.

[1612] As given by Professor Wright in his treatise, The Contract Clause

of the Constitution, 22. Professor Wright dates Hamilton's pamphlet,

1796.

[1613] 6 Cr. 87, 139 (1810). Justice Johnson, in his concurring opinion,

relied exclusively on general principles. "I do not hesitate to declare,

that a State does not possess the power of revoking its own grants. But

I do it, on a general principle, on the reason and nature of things; a

principle which will impose laws even on the Deity." Ibid. 143. _See

also_ his words in Satterlee _v._ Matthewson, 2 Pet. 380, 686 (1829);

and those of the North Carolina Supreme Court in Barnes _v._ Barnes, 8

Jones L. 53 (N.C.) 366 (1861), quoted in Thomas Henry Calvert. The

Constitution and the Courts, I, 948 (Northport, L.I., 1924). In both

these opinions it is asseverated that the contracts clause has been made

to do the work of "fundamental principles."

[1614] 7 Cr. 164 (1812). The exemption from taxation which was involved

in this case was held in 1886 to have lapsed through the acquiescence

for sixty years of the owners of the lands in the imposition of taxes

upon these. Given _v._ Wright, 117 U.S. 648 (1886).

[1615] Dartmouth College _v._ Woodward, 4 Wheat. 518 (1819).

[1616] It was not until well along in the eighteenth century that the

first American business corporation was created: "This was the New

London Society United for Trade and Commerce, which was chartered in

Connecticut in 1732. It had, however, an early demise. Following this

was a second Connecticut charter, namely, for building 'Union Wharf,' on

'Long Wharf,' at New Haven. A similar company, 'The Proprietors of

Boston Pier,' or 'The Long Wharf in the Town of Boston in New England,'

was chartered by the Massachusetts General Court in 1772. In 1768 the

Pennsylvania Assembly incorporated 'The Philadelphia Contributionship

for the Insuring of Houses from Loss by Fire.' Alone of the colonial

business corporations it has had a continuous existence to the present

day.

"Apparently the only other business corporations of the colonies were

companies for supplying water. One was incorporated in Massachusetts in

1652, and three in Rhode Island in 1772 and 1773. Alongside of these

corporations, and, indeed, preceding them, were a large number of

unincorporated associations, partnerships, societies, groups of

'undertakers,' 'companies,' formed for a great variety of business

purposes. In the eye of the law all of them were probably mere

partnerships or tenancies in common. Whaling and fishing companies,

so-called, were numerous. There were a number of mining companies,

chiefly for producing iron or copper. There were some manufacturing

companies, but they were not numerous. Banking institutions were

represented notably by the 'Bank of Credit Lumbard,' promoted in Boston

by John Blackwell and authorized by the General Court in 1686, and by

the 'Land Bank or Manufacturing Scheme' in the same colony in 1739-41.

"In addition to these there were a few insurance companies, a number of

companies formed for the Indian trade, numerous land companies, large

and small, a number of associations for erecting bridges, building or

repairing roads, and improving navigation of small streams or rivers.

Besides these there were a few colonial corporations not easily classed,

such as libraries, chambers of commerce, etc.

"During the Revolution few corporations of any sort were chartered.

After the conclusion of peace the situation was materially altered.

Capital had accumulated during the war. The disbanding of the army set

free a labor supply, which was rapidly increased by throngs of

immigrants. The day was one of bold experimentation, enthusiastic

exploitation of new methods, eager exploration of new paths, confident

undertaking of new enterprises. Everything conspired to bring about a

considerable extension of corporate enterprise in the field of business

before the end of the eighteenth century, notably after the critical

period of disunion and Constitution-making has passed. Prior to 1801

over three hundred charters were granted for business corporations; 90

per cent. of them after 1789. Judged by twentieth-century standards

these seem few, indeed, but neither in the colonies nor in the mother

country was there precedent for such a development." 105 The Nation 512

(New York, Nov. 8, 1917), reviewing Joseph Stancliffe Davis, Essays in

the Earlier History of American Corporations (2 vols., Harvard

University Press, 1917).

[1617] In 1806 Chief Justice Parsons of the Supreme Judicial Court of

Massachusetts, without mentioning the contracts clause, declared that

rights legally vested in a corporation cannot be "controuled or

destroyed by a subsequent statute, unless a power be reserved to the

legislature in the act of incorporation," Wales _v._ Stetson, 2 Mass.

143 (1806). _See also_ Stoughton _v._ Baker et al., 4 Mass. 522 (1808)

to like effect; _cf._ Locke _v._ Dane, 9 Mass. 360 (1812) in which it is

said that the purpose of the contracts clause was to "provide against

paper money and insolvent laws." Together these holdings add up to the

conclusion that the reliance of the Massachusetts court was on

"fundamental principles," rather than the contracts clause.

[1618] 4 Wheat., especially at 577-595 (Webster's argument); ibid. 666

(Story's opinion). _See also_ Story's opinion for the Court in Terrett

_v._ Taylor, 9 Cr. 43 (1815).

[1619] 4 Wheat. 518 (1819).

[1620] Ibid. 627.

[1621] 4 Wheat. at 637; _see also_ Home of the Friendless _v._ Rouse, 8

Wall. 430, 437 (1869).

[1622] 4 Pet. 514 (1830).

[1623] 11 Pet. 420 (1837).

[1624] Note the various cases to which municipalities are parties.

[1625] 4 Wheat. at 629.

[1626] In Munn _v._ Illinois, 94 U.S. 113 (1877) a category of "business

affected with a public interest" and whose property is "impressed with a

public use" was recognized. A corporation engaged in such a business

becomes a "quasi-public" corporation, the power of the State to regulate

which is larger than in the case of a purely private corporation.

Inasmuch as most corporations receiving public franchises are of this

character, the final result of Munn _v._ Illinois was to enlarge the

police power of the State in the case of the most important

beneficiaries of the Dartmouth College decision.

[1627] Meriwether _v._ Garrett, 102 U.S. 472 (1880); Covington _v._

Kentucky, 173 U.S. 231 (1899); Hunter _v._ Pittsburgh, 207 U.S. 161

(1907).

[1628] East Hartford _v._ Hartford Bridge Co., 10 How. 511 (1851);

Hunter _v._ Pittsburgh, 207 U.S. 161 (1907).

[1629] Trenton _v._ New Jersey, 262 U.S. 182, 191 (1923).

[1630] Newton _v._ Mahoning County, 100 U.S. 548 (1880).

[1631] Attorney General ex rel. Kies _v._ Lowrey, 199 U.S. 233 (1905).

[1632] Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502 (1942).

In this case the contracts involved were municipal bonds, and hence

"private" contracts; but the overruling power of the State in relation

to its municipalities was one of the grounds invoked by the Court in

sustaining the legislation. _See_ Ibid. 509. "'A municipal corporation *

* * is a representative not only of the State, but is a portion of its

governmental power. * * * The State may withdraw these local powers of

government at pleasure, and may, through its legislature or other

appointed channels, govern the local territory as it governs the State

at large. It may enlarge or contract its powers or destroy its

existence.'" United States _v._ Baltimore & O.R. Co., 17 Wall. 322, 329

(1873); and _see_ Hunter _v._ Pittsburgh, 207 U.S. 161 (1907).

[1633] Butler _v._ Pennsylvania, 10 How. 402 (1850); Fisk _v._ Police

Jury, 116 U.S. 131 (1885); Dodge _v._ Board of Education, 302 U.S. 74

(1937); Mississippi Use of Robertson _v._ Miller, 276 U.S. 174 (1928).

[1634] Butler _v._ Pennsylvania, 10 How. 420 (1850). _Cf._ Marbury _v._

Madison, 1 Cr. 137 (1803); Hoke _v._ Henderson, 15 N.C., (4 Dev.) 1

(1833). _See also_ United States _v._ Fisher, 109 U.S. 143 (1883);

United States _v._ Mitchell, 109 U.S. 146 (1883); Crenshaw _v._ United

States, 134 U.S. 99 (1890).

[1635] Fisk _v._ Police Jury, 116 U.S. 131 (1885); Mississippi Use of

Robertson _v._ Miller, 276 U.S. 174 (1928).

[1636] Hall _v._ Wisconsin, 103 U.S. 5 (1880). _Cf._ Higginbotham _v._

Baton Rouge, 306 U.S. 535 (1939).

[1637] Phelps _v._ Board of Education, 300 U.S. 319 (1937).

[1638] Dodge _v._ Board of Education, 302 U.S. 74 (1937).

[1639] Indiana ex rel. Anderson _v._ Brand 303 U.S. 95 (1938).

[1640] 7 Cr. 164 (1812).

[1641] Delaware Railroad Tax, 18 Wall. 206, 225 (1874); Pacific R. Co.

_v._ Maguire, 20 Wall. 36, 43 (1874); Humphrey _v._ Pegues, 16 Wall.

244, 249 (1873); Home of Friendless _v._ Rouse, 8 Wall. 430, 438 (1869).

[1642] 16 How. 369 (1854).

[1643] Ibid. 382-383.

[1644] Salt Co. _v._ East Saginaw, 13 Wall. 373, 379 (1872). _See also_

Welch _v._ Cook, 97 U.S. 541 (1879); Grand Lodge, F. & A.M. _v._ New

Orleans, 166 U.S. 143 (1897); Wisconsin & M.R. Co. _v._ Powers, 191 U.S.

379 (1903). _Cf._ Ettor _v._ Tacoma, 228 U.S. 148 (1913), in which it

was held that the repeal of a statute providing for consequential

damages caused by changes of grades of streets could not

constitutionally affect an already accrued right to compensation.

[1645] _See_ Christ Church _v._ Philadelphia County, 24 How. 300, 302

(1861); Seton Hall College _v._ South Orange, 242 U.S. 100 (1916).

[1646] Compare the above case with Home of Friendless _v._ Rouse, 8

Wall. 430, 437 (1869); _also_ Illinois Central R. Co. _v._ Decatur, 147

U.S. 190 (1893) with Wisconsin & M.R. Co. _v._ Powers, 191 U.S. 379

(1903).

[1647] Crane _v._ Hahlo, 258 U.S. 142, 145-146 (1922); Louisiana ex rel.

Folsom _v._ New Orleans, 109 U.S. 285, 288 (1883); Morley _v._ Lakeshore

& M.S.R. Co., 146 U.S. 162, 169 (1892). That the obligation of contracts

clause did not protect vested rights merely as such was stated by the

Court as early as Satterlee _v._ Matthewson, 2 Pet. 380, 413 (1829); and

again in the Charles River Bridge Co. _v._ Warren Bridge Co., 11 Pet.

420, 539-540 (1837).

[1648] _See_ Story's opinion. 4 Wheat. at 712.

[1649] Home of Friendless _v._ Rouse, 8 Wall. 430, 438 (1869);

Pennsylvania College Cases, 13 Wall. 190, 213 (1872); Miller _v._ New

York, 15 Wall. 478 (1873); Murray _v._ Charleston, 96 U.S. 432 (1878);

Greenwood _v._ Union Freight R. Co., 105 U.S. 13 (1882); Chesapeake &

O.R. Co. _v._ Miller, 114 U.S. 176 (1885); Louisville Water Co. _v._

Clark, 143 U.S. 1 (1892).

[1650] New Jersey _v._ Yard, 95 U.S. 104, 111 (1877).

[1651] _See_ Holyoke Water Power Co. _v._ Lyman, 15 Wall. 500, 520

(1873), following Fisheries _v._ Holyoke Water Power Co., 104 Mass. 446,

451 (1870); _also_ Shields _v._ Ohio, 95 U.S. 319 (1877); Fair Haven &

W.R. Co. _v._ New Haven, 203 U.S. 379 (1906); Berea College _v._

Kentucky, 211 U.S. 45 (1908). _See also_ Lothrop _v._ Stedman, 15 Fed.

Cas. No. 8,519 (1875), where the principles of natural justice are

thought to set a limit to the power. Earlier is Zabriskie _v._

Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867) where it is said that a

new charter may not be substituted; _also_ Allen _v._ McKean, 1 Fed.

Cas. No. 229 (1833) in which a federal court set aside a Maine statute

somewhat like the one involved in the Dartmouth College case, on the

ground that it went beyond the power of mere alteration. In this case,

however, only the right to alter had been reserved, in the charter

itself, and not the right to repeal.

[1652] _See_ in this connection the cases cited by Justice Sutherland in

his opinion for the Court in Phillips Petroleum Co. _v._ Jenkins, 297

U.S. 629 (1936).

[1653] Curran _v._ Arkansas, 15 How. 304 (1853); Shields _v._ Ohio, 95

U.S. 319 (1877); Greenwood _v._ Union Freight R. Co., 105 U.S. 13

(1882); Adirondack R. Co. _v._ New York, 176 U.S. 335 (1900); Stearns

_v._ Minnesota, 179 U.S. 223 (1900); Chicago, M. & St. P.R. Co. _v._

Wisconsin, 238 U.S. 491 (1915); Coombes _v._ Getz, 285 U.S. 434 (1932).

[1654] Pennsylvania College Cases, 13 Wall. 190, 218 (1872). _See also_

Calder _v._ Michigan, 218 U.S. 591 (1910).

[1655] Lakeshore & M.S.R. Co. _v._ Smith, 173 U.S. 684, 690 (1899);

Coombes _v._ Getz, 285 U.S. 434 (1932). Both these decisions cite

Greenwood _v._ Union Freight R. Co., 105 U.S. 13, 17 (1882), but without

apparent justification.

[1656] 4 Pet. 514 (1830).

[1657] Thorpe _v._ Rutland & Burlington Railroad Co., 27 Vt. 140 (1854).

[1658] Thus a railroad may be required, at its own expense and

irrespective of benefits to itself, to eliminate grade crossings in the

interest of public safety, (New York & N.E.R. Co. _v._ Bristol, 151 U.S.

556 (1894)); to make highway crossings reasonably safe and convenient

for public use, (Great Northern R. Co. _v._ Minnesota, 246 U.S. 434

(1918)); to repair viaducts, (Northern Pac. R. Co. _v._ Minnesota, 208

U.S. 583 (1908)); and to fence its right of way, (Minneapolis & St. L.R.

Co. _v._ Emmons, 149 U.S. 364 (1893)). Though a railroad company owns

the right of way along a street, the city may require it to lay tracks

to conform to the established grade; to fill in tracks at street

intersections; and to remove tracks from a busy street intersection,

when the attendant disadvantages and expense are small and the safety of

the public appreciably enhanced, (Denver & R.G.R. Co. _v._ Denver, 250

U.S. 241 (1919)).

Likewise the State, in the public interest, may require a railroad to

reestablish an abandoned station, even though the railroad commission

had previously authorized its abandonment on condition that another

station be established elsewhere, a condition which had been complied

with, (New Haven & N. Co. _v._ Hamersley, 104 U.S. 1 (1881)). It may

impose upon a railroad liability for fire communicated by its

locomotives, even though the State had previously authorized the company

to use said type of locomotive power, (St. Louis & S.F.R. Co. _v._

Mathews, 165 U.S. 1, 5 (1897)); and it may penalize the failure to cut

drains through embankments so as to prevent flooding of adjacent lands,

(Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915)).

[1659] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878). _See also_

Fertilizing Co. _v._ Hyde Park, 97 U.S. 659 (1878); and Hammond Packing

_v._ Arkansas, 212 U.S. 322, 345 (1909).

[1660] 11 Pet. 420 (1837).

[1661] 11 Pet. at 548-553.

[1662] 201 U.S. 400 (1906).

[1663] Ibid. 471-472, citing The Binghamton Bridge, 3 Wall. 51, 75

(1865).

[1664] Memphis & L.R.R. Co. _v._ Berry, 112 U.S. 609, 617 (1884). _See

also_ Picard _v._ East Tennessee, Virginia & Georgia R. Co., 130 U.S.

637, 641 (1889); Louisville & N.R. Co. _v._ Palmes, 109 U.S. 244, 251

(1883); Morgan _v._ Louisiana, 93 U.S. 217 (1876); Wilson _v._ Gaines,

103 U.S. 417 (1881); Norfolk & W.R. Co. _v._ Pendleton, 156 U.S. 667,

673 (1895).

[1665] Railroad Co. _v._ Georgia, 98 U.S. 359, 365 (1879).

[1666] Phoenix F. & M. Insurance Co. _v._ Tennessee, 161 U.S. 174

(1896).

[1667] Rochester R. Co. _v._ Rochester, 205 U.S. 236 (1907); followed in

Wright _v._ Georgia R. & Bkg. Co., 216 U.S. 420 (1910); and New York

Rapid Transit Co. _v._ City of New York, 303 U.S. 573 (1938). _Cf._

Tennessee _v._ Whitworth, 117 U.S. 139 (1886) the authority of which is

respected in the preceding case.

[1668] Chicago, B. & K.C.R. Co. _v._ Missouri ex rel. Guffey, 120 U.S.

569 (1887).

[1669] Ford _v._ Delta & Pine Land Co., 164 U.S. 662 (1897).

[1670] Vicksburg, S. & P.R. Co. _v._ Dennis, 116 U.S. 665 (1886).

[1671] Millsaps College _v._ Jackson, 275 U.S. 129 (1927).

[1672] Hale _v._ Iowa State Board of Assessment, 302 U.S. 95 (1937).

[1673] Stone _v._ Farmers' Loan & Trust Co. (Railroad Commission Cases),

116 U.S. 307, 330 (1886) extended in Southern Pacific Co. _v._ Campbell,

230 U.S. 537 (1913) to cases in which the word "reasonable" does not

appear to qualify the company's right to prescribe tolls. _See also_

American Toll Bridge Co. _v._ Railroad Com. of California et al., 307

U.S. 486 (1939).

[1674] Georgia R. & Power Co. _v._ Decatur, 262 U.S. 432 (1923). _See

also_ Southern Iowa Electric Co. _v._ Chariton, 255 U.S. 539 (1921).

[1675] Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1, 15 (1898).

[1676] Skaneateles Water Works Co. _v._ Skaneateles, 184 U.S. 354

(1902); Knoxville Water Co. _v._ Knoxville, 200 U.S. 22 (1906); Madera

Water Works _v._ Madera, 228 U.S. 454 (1913).

[1677] Rogers Park Water Co. _v._ Fergus, 180 U.S. 624 (1901).

[1678] Home Telephone Co. _v._ Los Angeles, 211 U.S. 265 (1908);

Wyandotte Gas Co. _v._ Kansas, 231 U.S. 622 (1914).

[1679] _See also_ Puget Sound Traction, Light & P. Co. _v._ Reynolds,

244 U.S. 574 (1917). "Before we can find impairment of a contract we

must find an obligation of the contract which has been impaired. Since

the contract here relied upon is one between a political subdivision of

a state and private individuals, settled principles of construction

require that the obligation alleged to have been impaired be clearly and

unequivocally expressed." Justice Black for the Court in Keefe _v._

Clark, 322 U.S. 393, 396-397 (1944).

[1680] Corporation of Brick Church _v._ Mayor et al., 5 Cowen (N.Y.)

538, 540 (1826).

[1681] West River Bridge Co. _v._ Dix, 6 How. 507 (1848). _See also_

Backus _v._ Lebanon, 11 N.H. 19 (1840); White River Turnpike Co. _v._

Vermont Cent. R. Co., 21 Vt. 590 (1849); and Bonaparte _v._ Camden &

A.R. Co., 3 Fed. Cas. No. 1,617 (1830); cited in Calvert I, 960-961.

[1682] Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 (1917).

[1683] Illinois Central Railroad _v._ Illinois, 146 U.S. 387, 453, 455

(1892).

[1684] _See_ pp. 335-336.

[1685] _See_ especially Home of the Friendless _v._ Rouse, 8 Wall. 430

(1869), and Washington University _v._ Rouse, 8 Wall. 439 (1869).

[1686] Georgia Railway Co. _v._ Redwine, 342 U.S. 299, 305-06 (1952).

The Court distinguishes In re Ayers, 123 U.S. 443 (1887) on the ground

that the action there was barred "as one in substance directed against

the State to obtain specific performance of a contract with the State".

342 U.S. 305.

[1687] Stone _v._ Mississippi, 101 U.S. 814, 820 (1880).

[1688] Butcher's Union Co. _v._ Crescent City Co., 111 U.S. 746 (1884).

[1689] New Orleans Gas Co. _v._ Louisiana Light Co., 115 U.S. 630

(1885).

[1690] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548, 558

(1914). _See also_ Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67

(1915); _also_ Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20

(1917), where the police power and eminent domain are treated on the

same basis in respect of inalienability; also Wabash R. Co. _v._

Defiance, 167 U.S. 88, 97 (1897); Home Telephone Co. _v._ Los Angeles,

211 U.S. 265 (1908); and Calvert I, 962.

[1691] Morley _v._ Lake Shore & M.S.R. Co., 146 U.S. 162 (1892); New

Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891); Missouri &

A. Lumber & Min. Co. _v._ Greenwood Dist, 249 U.S. 170 (1919). But _cf._

Livingston _v._ Moore, 7 Pet. 469, 549 (1833); and Garrison _v._ New

York, 21 Wall. 196, 203 (1875), suggesting that a different view was

earlier entertained in the case of judgments in actions of debt.

[1692] Maynard _v._ Hill, 125 U.S. 190 (1888); Dartmouth College _v._

Woodward, 4 Wheat. 518, 629 (1819). _Cf._ Andrews _v._ Andrews, 188 U.S.

14 (1903). The question whether a wife's rights in the community

property under the laws of California were of a contractual nature was

raised but not determined in Moffitt _v._ Kelly, 218 U.S. 400 (1910).

[1693] New Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891);

Zane _v._ Hamilton County, 189 U.S. 370, 381 (1903).

[1694] 4 Wheat. 122 (1819). For the first such case in a Federal Circuit

Court, _see_ Charles Warren, The Supreme Court in United States History,

I, 67 (Boston, 1922).

[1695] 12 Wheat. 213 (1827).

[1696] Ibid. 353-354.

[1697] Von Hoffman _v._ Quincy, 4 Wall. 535, 552 (1867).

[1698] 1 How. 311 (1843).

[1699] 2 How. 608 (1844).

[1700] Oshkosh Waterworks Co. _v._ Oshkosh, 187 U.S. 437, 439 (1903);

New Orleans & L.R. Co. _v._ Louisiana, 157 U.S. 219 (1895).

[1701] Antoni _v._ Greenhow, 107 U.S. 769 (1883).

[1702] The right was unheld in Mason _v._ Haile, 12 Wheat. 370 (1827);

and again in Vial _v._ Penniman (Penniman's Case), 103 U.S. 714 (1881).

On early English and Colonial law touching the subject, _see_ argument

of counsel in Sturges _v._ Crowninshield, 4 Wheat. 122, 140-145 (1819).

[1703] McGahey _v._ Virginia, 135 U.S. 662 (1890).

[1704] Louisiana ex rel. Ranger _v._ New Orleans, 102 U.S. 203 (1880).

[1705] Von Hoffman _v._ Quincy, 4 Wall. 535, 554 (1867).

[1706] Antoni _v._ Greenhow, 107 U.S. 769, 775.--Illustrations of

changes in remedies, which have been sustained, may be seen in the

following cases: Jackson ex dem. Hart _v._ Lamphire, 3 Pet. 280 (1830);

Hawkins _v._ Barney, 5 Pet. 457 (1831); Crawford _v._ Branch Bank of

Alabama, 7 How. 279 (1849); Curtis _v._ Whitney, 13 Wall. 68 (1872);

Cairo & F.R. Co. _v._ Hecht, 95 U.S. 168 (1877); Terry _v._ Anderson, 95

U.S. 628 (1877); Tennessee _v._ Sneed, 96 U.S. 69 (1877); South Carolina

_v._ Gaillard, 101 U.S. 433 (1880); Louisiana _v._ New Orleans, 102 U.S.

203 (1880); Connecticut Mut. L. Ins. Co. _v._ Cushman, 108 U.S. 51

(1883); Vance _v._ Vance, 108 U.S. 514 (1883); Gilfillan _v._ Union

Canal Co., 109 U.S. 401 (1883); Hill _v._ Merchants' Mut. Ins. Co., 134

U.S. 515 (1890); New Orleans City & Lake R. Co. _v._ Louisiana, 157 U.S.

219 (1895); Red River Valley Nat. Bank _v._ Craig, 181 U.S. 548 (1901);

Wilson _v._ Standefer, 184 U.S. 399 (1902); Oshkosh Waterworks Co. _v._

Oshkosh, 187 U.S. 437 (1903); Waggoner _v._ Flack, 188 U.S. 595 (1903);

Bernheimer _v._ Converse, 206 U.S. 516 (1907); Henley _v._ Myers, 215

U.S. 373 (1910); Selig _v._ Hamilton, 234 U.S. 652 (1914); Security Sav.

Bank _v._ California, 263 U.S. 282 (1923); United States Mortgage Co.

_v._ Matthews, 293 U.S. 232 (1934).

Compare the following cases, where changes in remedies were deemed to be

of such a character as to interfere with substantial rights: Wilmington

& W.R. Co. _v._ King, 91 U.S. 3 (1875); Memphis _v._ United States, 97

U.S. 293 (1878); Poindexter _v._ Greenhow, 114 U.S. 269, 270, 298, 299

(1885); Effinger _v._ Kenney, 115 U.S. 566 (1885); Fisk _v._ Jefferson

Police Jury, 116 U.S. 131 (1885); Bradley _v._ Lightcap, 195 U.S. 1

(1904); Bank of Minden _v._ Clement, 256 U.S. 126 (1921).

[1707] Von Hoffman _v._ Quincy, 4 Wall. 535, 554-555 (1867).

[1708] _See also_ Louisiana ex rel. Nelson _v._ St. Martin's Parish, 111

U.S. 716 (1884).

[1709] Mobile _v._ Watson, 116 U.S. 289 (1886); Graham _v._ Folsom, 200

U.S. 248 (1906).

[1710] Heine _v._ Levee Commissioners, 19 Wall. 655 (1874). _Cf._

Virginia _v._ West Virginia, 246 U.S. 565 (1918).

[1711] Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502, 510

(1942). Alluding to the ineffectiveness of purely judicial remedies

against defaulting municipalities, Justice Frankfurter says: "For there

is no remedy when resort is had to 'devices and contrivances' to nullify

the taxing power which can be carried out only through authorized

officials. _See_ Rees _v._ City of Watertown, 19 Wall. 107, 124 (1874).

And so we have had the spectacle of taxing officials resigning from

office in order to frustrate tax levies through mandamus, and officials

running on a platform of willingness to go to jail rather than to

enforce a tax levy (_see_ Raymond, State and Municipal Bonds, 342-343),

and evasion of service by tax collectors, thus making impotent a court's

mandate. Yost _v._ Dallas County, 236 U.S. 50, 57 (1915)." 316 U.S. at

511.

[1712] Myers _v._ Irwin, 2 Sergeant and Rawle's (Pa.), 367, 371 (1816);

_also_, to same effect, Lindenmuller _v._ The People, 33 Barbour (N.Y.),

548 (1861). _See also_ Brown _v._ Penobscot Bank, 8 Mass. 445 (1812).

[1713] Manigault _v._ Springs, 199 U.S. 473, 480 (1905).

[1714] Jackson _v._ Lamphire, 3 Pet. 280 (1830). _See also_ Phalen _v._

Virginia, 8 How. 163 (1850).

[1715] Stone _v._ Mississippi, 101 U.S. 814 (1880).

[1716] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878).

[1717] New York C.R. Co. _v._ White, 243 U.S. 188 (1917). In this and

the preceding two cases the legislative act involved did not except from

its operation existing contracts.

[1718] Manigault _v._ Springs, 199 U.S. 473 (1905).

[1719] Portland Railway, Light & Power Co. _v._ Railroad Comm. of

Oregon, 229 U.S. 397 (1913).

[1720] Midland Realty Co. _v._ Kansas City Power & Light Co., 300 U.S.

109 (1937).

[1721] Hudson County Water Co. _v._ McCarter, 209 U.S. 349 (1908).

[1722] Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170, 198

(1921); followed in Levy Leasing Co. _v._ Siegel, 258 U.S. 242 (1922).

[1723] Chastleton Corp. _v._ Sinclair, 264 U.S. 543, 547-548 (1924).

[1724] 290 U.S. 398 (1934).

[1725] Ibid. 442, 444. _See also_ Veix _v._ Sixth Ward Building and Loan

Assn. of Newark, 310 U.S. 32 (1940) in which was sustained a New Jersey

statute, amending, in view of the Depression, the law governing building

and loan associations. The authority of the State to safeguard the vital

interests of the people, said Justice Reed, "is not limited to health,

morals and safety. It extends to economic needs as well." Ibid. 38-39.

[1726] _See_ especially Edwards _v._ Kearzey, 96 U.S. 595 (1878); and

Barnitz _v._ Beverly, 163 U.S. 118 (1896).

[1727] 290 U.S. 398 (1934). As to conditions surrounding the enactment

of moratorium statutes in 1933, _see_ New York Times of January 22,

1933, sec. II, pp. 1-2.

[1728] Worthen Co. _v._ Thomas, 292 U.S. 426 (1934); Worthen Co. _v._

Kavanaugh, 295 U.S. 56 (1935).

[1729] 295 U.S. at 62.

[1730] East New York Savings Bank _v._ Hahn, 326 U.S. 230, 235 (1945).

[1731] Honeyman _v._ Jacobs, 306 U.S. 539 (1939). _See also_ Gelfert

_v._ National City Bank, 313 U.S. 221 (1941).

[1732] 313 U.S. at 233-234.

[1733] One reason for this is indicated in the following passage from

Justice Field's opinion for the Court in Paul _v._ Virginia, decided in

1869: "At the present day corporations are multiplied to an almost

indefinite extent. There is scarcely a business pursued requiring the

expenditure of large capital, or the union of large numbers, that is not

carried on by corporations. It is not too much to say that the wealth

and business of the country are to a great extent controlled by them." 8

Wall. 168, 181-182.

[1734] Wright, The Contract Clause, 91-100.

[1735] Perry _v._ United States, 294 U.S. 330 (1935); Louisville Joint

Stock Bank _v._ Radford, 295 U.S. 555 (1935). The Court has pointed out,

what of course, is evident on a reading of the Constitution, that the

contract clause is a limitation on the powers of the States and not of

the United States. Central P.R. Co. _v._ Gallatin (Sinking Fund Cases),

99 U.S. 700, 718 (1879). _See also_ Mitchell _v._ Clark, 110 U.S. 633,

643 (1884); Legal Tender Cases, 12 Wall. 457, 529 (1871); Continental

Ill. Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R. Co., 294 U.S. 648

(1935); St. Anthony Falls Water Power Co. _v._ Board of Water

Commissioners, 168 U.S. 349, 372 (1897); Dubuque, S.C.R. Co. _v._

Richmond, 19 Wall. 584 (1874); New York _v._ United States, 257 U.S. 591

(1922). _Cf._ however, Hepburn _v._ Griswold, 8 Wall. 603, 623 (1870);

and Central Pacific R.R. Co. _v._ Gallatin (Sinking Fund Cases), 99 U.S.

700, 737 (1879).

[1736] _See_, e.g., Neblett et al. _v._ Carpenter, et al., 305 U.S. 297

(1938); Asbury Hospital _v._ Cass County, 326 U.S. 207 (1945);

Connecticut Mutual L. Ins. Co. _v._ Moore, 333 U.S. 541 (1948). For a

notable case in which the obligations clause was mustered into service,

by rather heroic logic, to do work that was afterwards put upon the due

process clause, _see_ State Tax On Foreign-Held Bonds, 15 Wall. 300

(1873).

[1737] Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 673 (1945).

[1738] Woodruff _v._ Parham, 8 Wall. 123 (1869).

[1739] 12 Wheat. 419 (1827).

[1740] Ibid. 441.

[1741] May & Co. _v._ New Orleans, 178 U.S. 496, 502 (1900).

[1742] Ibid. 501; Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124

(1928); McGoldrick _v._ Gulf Oil Corp., 309 U.S. 414 (1940).

[1743] Low _v._ Austin, 13 Wall. 29 (1872); May & Co. _v._ New Orleans,

178 U.S. 496 (1900).

[1744] Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 667 (1945).

[1745] Ibid. 664.

[1746] Canton R. Co. _v._ Rogan, 340 U.S. 511 (1951).

[1747] Brown _v._ Maryland, 12 Wheat. 419, 447 (1827).

[1748] Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218

(1933).

[1749] Low _v._ Austin, 13 Wall. 29, 33 (1872).

[1750] Cook _v._ Pennsylvania, 97 U.S. 566, 573, (1878).

[1751] Crew Levick Co. _v._ Pennsylvania, 245 U.S. 292 (1917).

[1752] Cooley _v._ Board of Port Wardens, 12 How. 299, 313 (1851).

[1753] Waring _v._ Mobile, 8 Wall. 110, 122 (1869). _See also_ Pervear

_v._ Massachusetts, 5 Wall. 475, 478 (1867); Schollenberger _v._

Pennsylvania, 171 U.S. 1, 24 (1898).

[1754] Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124 (1928).

[1755] Nathan _v._ Louisiana, 8 How. 73, 81 (1850).

[1756] Mager _v._ Grima, 8 How. 490 (1850).

[1757] Brown _v._ Maryland, 12 Wheat. 419, 441 (1827); Hooven & Allison

Co. _v._ Evatt, 324 U.S. 652 (1945).

[1758] New York ex rel. Burke _v._ Wells, 208 U.S. 14 (1908).

[1759] Selliger _v._ Kentucky, 213 U.S. 200 (1909); _cf._ Almy _v._

California, 24 How. 169, 174 (1861).

[1760] Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 488 (1888).

[1761] 107 U.S. 38 (1883).

[1762] Ibid. 55.

[1763] Patapsco Guano Co. _v._ North Carolina Bd. of Agriculture, 171

U.S. 345, 301 (1898). For a discussion of the limitations on State power

to pass inspection laws resulting from the commerce clause, _see_ pp.

183, 237.

[1764] Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 488-489 (1888).

[1765] Clyde Mallory Lines _v._ Alabama ex rel. State Docks Commission,

296 U.S. 261, 265 (1935); Cannon _v._ New Orleans, 20 Wall. 577, 581

(1874); Wheeling, P. & C. Transportation Co. _v._ Wheeling, 99 U.S. 273,

283 (1879).

[1766] Keokuk Northern Line Packet Co. _v._ Keokuk, 95 U.S. 80 (1877);

Parkersburg & Ohio River Transportation Co. _v._ Parkersburg, 107 U.S.

691 (1883); Ouachita Packet Co. _v._ Aiken, 121 U.S. 444 (1887).

[1767] Cooley _v._ Board of Port Wardens, 12 How. 299, 314 (1851); Ex

parte McNiel, 13 Wall. 236 (1872); Inman Steamship Co. _v._ Tinker, 94

U.S. 238, 243 (1877); Northwestern Union Packet Co. _v._ St. Louis, 100

U.S. 423 (1880); Vicksburg _v._ Tobin, 100 U.S. 430 (1880); Cincinnati,

P.B.S. & P. Packet Co. _v._ Catlettsburg, 105 U.S. 559 (1882).

[1768] Huse _v._ Glover, 119 U.S. 543, 549 (1886).

[1769] Southern S.S. Co. _v._ Portwardens, 6 Wall. 31 (1867).

[1770] Peete _v._ Morgan, 19 Wall. 581 (1874).

[1771] Morgan's L. & T.R. & S.S. Co. _v._ Board of Health, 118 U.S. 455,

462 (1886).

[1772] Wiggins Ferry Co. _v._ East St. Louis, 107 U.S. 365 (1883). _See

also_ Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196, 212 (1885);

Philadelphia & S. Mail Steamship Co. _v._ Pennsylvania, 122 U.S. 326,

338 (1887); Osborne _v._ Mobile, 16 Wall. 479, 481 (1873).

[1773] Cox _v._ Lott (State Tonnage Tax Cases), 12 Wall. 204, 217

(1871).

[1774] Luther _v._ Borden, 7 How. 1, 45 (1849).

[1775] Presser _v._ Illinois, 116 U.S. 252 (1886).

[1776] Poole _v._ Fleeger, 11 Pet 185, 209 (1837).

[1777] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104 (1938).

[1778] Frankfurter and Landis, The Compact Clause of the Constitution--A

Study in Interstate Adjustments, 34 Yale Law Journal, 685, 691 (1925).

[1779] Article IX.

[1780] Article VI.

[1781] 14 Pet. 540 (1840).

[1782] Ibid. 570, 571, 572.

[1783] 148 U.S. 503, 518 (1893). _See also_ Stearns _v._ Minnesota, 179

U.S. 223, 244 (1900); _also_ reference in next note, at pp. 761-762.

[1784] _See_ Leslie W. Dunbar, Interstate Compacts and Congressional

Consent, 36 Virginia Law Review, 753 (October, 1950).

[1785] Frankfurter and Landis, The Compact Clause of the Constitution--A

Study in Interstate Adjustments, 34 Yale Law Journal, 685, 735 (1925);

Frederick L. Zimmerman and Mitchell Wendell, Interstate Compacts Since

1925 (1951), 8 Book of States, 26 (1950-1951).

[1786] 48 Stat. 909 (1934).

[1787] 8 Book of the States, 45 (1950-1951).

[1788] 7 U.S.C. Sec. 515; 15 U.S.C. Sec. 717j; 16 U.S.C. Sec. 552,

667a; 33 U.S.C. Sec. 11, 567-567b.

[1789] Green _v._ Biddle, 8 Wheat. 1, 85 (1823).

[1790] Virginia _v._ Tennessee, 148 U.S. 503 (1893).

[1791] Virginia _v._ West Virginia, 11 Wall. 39 (1871).

[1792] Wharton _v._ Wise, 153 U.S. 155, 173 (1894).

[1793] James _v._ Dravo Contracting Co., 302 U.S. 134 (1937). _See also_

Arizona _v._ California, 292 U.S. 341, 315 (1934).

[1794] 332 U.S. 631 (1948).

[1795] On the activities of the Board, in which representatives of both

races participate and from which both races have benefited, _see_

Remarks of Hon. Spessard L. Holland of Florida. Cong. Rec., 81st Cong.,

2d sess., v. 96, p. 465-470.

[1796] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 433

(1856).

[1797] St. Louis & S.F.R. Co. _v._ James, 161 U.S. 545, 562 (1896).

[1798] Poole _v._ Fleeger, 11 Pet. 185, 209 (1837); Rhode Island _v._

Massachusetts, 12 Pet. 657, 725 (1838).

[1799] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104, 106 (1938).

[1800] Green _v._ Biddle, 8 Wheat. 1, 13 (1823); Virginia _v._ West

Virginia, 246 U.S. 565 (1918). _See also_ Pennsylvania _v._ Wheeling &

Belmont Bridge Co., 13 How. 518, 566 (1852); Olin _v._ Kitzmiller, 259

U.S. 260 (1922).

[1801] Virginia _v._ West Virginia, 246 U.S. 565, 601 (1918).

[1802] Dyer _v._ Sims, 341 U.S. 22 (1951). The case stemmed from

mandamus proceedings brought to compel the auditor of West Virginia to

pay out money to a commission which had been created by a compact

between West Virginia and other States to control pollution of the Ohio

River. The decision of the Supreme Court of Appeals of West Virginia

denying mandamus was reversed by the Supreme Court, and the case

remanded. The opinion of the Court, by Justice Frankfurter, reviews and

revises the West Virginia Court's interpretation of the State

constitution, thereby opening up, temporarily at least, a new field of

power for judicial review. Justice Reed, challenging this extension of

judicial review, thought the issue determined by the Supremacy Clause.

Justice Jackson urged that the compact power was "inherent in

sovereignty" and hence was limited only by the requirement of

congressional consent. Justice Black concurred in the result without

opinion.

ARTICLE II

EXECUTIVE DEPARTMENT

Section 1. The President: Page

Clause 1. Powers and term of the President 377

Nature and scope of Presidential power 377

Contemporary source of the Presidency 377

Presidency in the federal convention 378

Executive power; Hamilton's contribution 378

Myers case 379

Curtiss-Wright case 380

Theory of the Presidential office 380

Term of four years 382

Anti-third term tradition 382

Clauses 2, 3, 4, 5, 6, 7, and 8. Election, qualifications,

succession, compensation, and oath of the President 383

Maintenance of the office of President 384

"Electoral college" 384

Constitutional status of electors 385

"Natural-born citizen" 386

Presidential succession 387

Act of 1792 387

Acts of 1886 and 1947 388

Compensation and emoluments 388

Oath of office 388

Effect of the oath 389

Section 2. Powers and duties of the President 389

Clause 1. Commander in chiefship; opinions from heads of

departments; pardons 389

Commander in chiefship 389

Historical 389

Prize cases 390

Impact of the Prize cases on World Wars I and II 391

Presidential theory of the commander in chiefship in

World War II 392

Presidential war agencies 393

Constitutional status of Presidential agencies 394

West Coast Japanese 394

Act of March 21, 1942 395

Presidential government of labor relations 395

"Sanctions" 397

Constitutional basis of sanctions 397

Martial law and constitutional limitations 398

Martial law in Hawaii 400

Case of the Nazi saboteurs 401

War crimes cases 402

President as commander of the forces 403

Commander in chief a civilian officer 404

Presidential advisers 405

The Cabinet 405

Pardons and reprieves 406

Legal nature of a pardon 406

Qualification of above theory 407

Scope of the power 408

"Offenses against the United States"; contempt of court 408

Effects of a pardon: Ex parte Garland 409

Limits to the efficacy of a pardon 410

Congress and Amnesty 411

Clauses 2 and 3. Treaties and appointment of officers 412

Treaty-making power 412

President and Senate 412

Negotiation a Presidential monopoly 412

Treaties as law of the land 413

Origin of the conception 414

Treaty rights versus State power 415

Recent cases 417

When is a treaty self-executing; when not 417

Constitutional freedom of Congress with respect to

treaties 418

Treaty-making power and revenue laws 419

Congressional repeal of treaties 420

Treaties versus prior acts of Congress 421

Interpretation and termination of treaties as

international compacts 423

Termination of treaties by notice 423

Determination whether a treaty has lapsed 425

Status of a treaty a political question 426

Treaties and the "necessary and proper" clause 426

Constitutional limits of the treaty-making power:

Missouri _v._ Holland 428

Indian treaties 431

Present status of Indian treaties 432

International Agreements without Senate approval 433

Routine executive agreements 433

Law-making executive agreements 434

President McKinley's contribution 435

Executive agreements affecting Far Eastern Relations 436

International obligation of executive agreements 436

Litvinov agreement of 1933 437

United States _v._ Belmont 437

United States _v._ Pink; National supremacy 438

Hull-Lothian agreement, 1940 439

War-time agreements 440

Executive agreements by authorization of Congress 441

Reciprocal trade agreements 441

Constitutionality of trade agreements 442

Lend-Lease Act 443

President plus Congress versus Senate 443

Arbitration agreements 444

Agreements under the United Nations Charter 444

United Nations Participation Act 445

Executive establishment 445

"Office" 445

"Ambassadors and other public ministers" 445

Presidential diplomatic agents 447

Congressional regulation of offices 449

Conduct in office 450

The loyalty issue 451

Legislation increasing duties of an officer 452

"Inferior officers"; "employees" 452

Stages of appointment process 453

Nomination 453

Senate approval 453

When Senate consent is complete 453

Commissioning the officer 454

Recess appointments 455

Ad interim designations 455

Removal power; Myers case 455

"Nature of the office" concept 458

Humphrey case 458

Other phases of the removal power 459

Presidential aegis 460

Section 3. Legislative, diplomatic, and law enforcement duties

of the President 462

Legislative role of the President 462

Right of Reception 463

Scope of the power 463

A Presidential monopoly 464

"The Logan Act" 464

A formal or a formative power 465

President's diplomatic role 465

Jefferson's real position 466

Power of recognition 467

The case of Cuba 468

Power of nonrecognition 469

President and Congress 470

Congressional implementation of Presidential policies 471

Doctrine of political questions 471

Recent statements of the doctrine 473

The President as law enforcer 475

Types of executive power 475

How the President's own powers are exercised 476

Power and duty of the President in relation to subordinate

executive officers 478

Administrative Decentralization _v._ Jacksonian

Centralism 478

Congressional Power _v._ Presidential Duty to the Law 479

Myers Case _v._ Humphrey Case 480

Power of the President to guide enforcement of the penal

law 481

President as law interpreter 481

Military power in law enforcement: the posse comitatus 482

Suspension of Habeas Corpus by President 484

Preventive martial law 484

Debs case 484

Status of the Debs case, today 485

President's duty in cases of domestic violence 486

President as executive of the law of nations 486

Protection of American rights of person and property abroad 487

Presidential world policing 488

The Atlantic Pact 488

Presidential action in the domain of Congress: Steel

Seizure Case 489

Presidential immunity from judicial direction 499

President's subordinates and the courts 500

Section 4. Impeachment 501

Impeachment 501

"Civil" officer 501

"High crimes and misdemeanors" 502

Chase impeachment 502

Johnson impeachment 503

Later impeachments 503

EXECUTIVE DEPARTMENT

Article II

Section 1: The executive Power shall be vested in a President

of the United States of America. He shall hold his Office during the

Term of four Years, and, together with the Vice President, chosen for

the same Term, be elected, as follows:

The Nature and Scope of Presidential Power

CONTEMPORARY SOURCE OF THE PRESIDENCY

The immediate source of article II was the New York constitution of

1777,[1] of which the relevant provisions are the following: "Art.

XVIII. * * * The governor * * * shall by virtue of his office, be

general and commander in chief of all the militia, and admiral of the

navy of this state; * * * he shall have power to convene the assembly

and senate on extraordinary occasions; to prorogue them from time to

time, provided such prorogations shall not exceed sixty days in the

space of any one year; and, at his discretion, to grant reprieves and

pardons to persons convicted of crimes, other than treason and murder,

in which he may suspend the execution of the sentence, until it shall be

reported to the legislature at their subsequent meeting; and they shall

either pardon or direct the execution of the criminal, or grant a

further reprieve.

"Art. XIX. * * * It shall be the duty of the governor to inform the

legislature at every session of the condition of the State so far as may

concern his department; to recommend such matters to their consideration

as shall appear to him to concern its good government, welfare, and

prosperity; to correspond with the Continental Congress and other

States; to transact all necessary business with the officers of

government, civil and military; to take care that the laws are executed

to the best of his ability; and to expedite all such measures as may be

resolved upon by the legislature.

"To these, of course, are to be added the important powers of qualified

appointment and qualified veto. It is to be observed also that there is

no question of the interposition of the law of the land to regulate

these powers. They are the governor's, by direct grant of the people,

and his alone. Another distinguishing characteristic, equally important,

is the fact that the governor was to be chosen by a constitutionally

defined electorate, not by the legislature. He was also to have a

three-year term, and there were to be no limitations on his

re-eligibility to office. In short, all the isolated principles of

executive strength in other constitutions were here brought into a new

whole. Alone they were of slight importance; gathered together they gain

new meaning. And, in addition, we have new elements of strength utilized

for the first time on the American continent."[2] The appellation

"President" appears to have been suggested to the Federal Convention by

Charles Pinckney,[3] to whom it may have been suggested by the title at

that date of the chief magistrate of Delaware.

THE PRESIDENCY IN THE FEDERAL CONVENTION

The relevant clause in the Report from the Committee of Detail of August

6, 1787 to the Federal Convention read as follows: "The Executive Power

of the United States shall be vested in a single person. His stile shall

be 'The President of the United States of America'; and his title shall

be 'His Excellency.'"[4] This language recorded the decision of the

Convention, sitting in committee of the whole, that the national

executive power should be vested in a single person, not a body. For the

rest, it is a simple designation of office. The final form of the clause

came from the Committee of Style,[5] and was never separately acted on

by the Convention.

"EXECUTIVE POWER"; HAMILTON'S CONTRIBUTION

Is this term a summary description merely of the powers which are

granted in more specific terms in succeeding provisions of article II,

or is it also a grant of powers; and if the latter, what powers

specifically does it comprise? In the debate on the location of the

removal power in the House of Representatives in 1789[6] Madison and

others urged that this was "in its nature" an "executive power";[7] and

their view prevailed so far as executive officers appointed without

stated term by the President, with the advice and consent of the Senate,

were concerned. Four years later Hamilton, in defending President

Washington's course in issuing a Proclamation of Impartiality upon the

outbreak of war between France and Great Britain, developed the

following argument: "The second article of the Constitution of the

United States, section first, establishes this general proposition, that

'the Executive Power shall be vested in a President of the United States

of America.' The same article, in a succeeding section, proceeds to

delineate particular cases of executive power. It declares, among other

things, that the president shall be commander in chief of the army and

navy of the United States, and of the militia of the several states,

when called into the actual service of the United States; that he shall

have power, by and with the advice and consent of the senate, to make

treaties; that it shall be his duty to receive ambassadors and other

public ministers, _and to take care that the laws be faithfully

executed._ It would not consist with the rules of sound construction, to

consider this enumeration of particular authorities as derogating from

the more comprehensive grant in the general clause, further than as it

may be coupled with express restrictions or limitations; as in regard to

the co-operation of the senate in the appointment of officers, and the

making of treaties; which are plainly qualifications of the general

executive powers of appointing officers and making treaties. The

difficulty of a complete enumeration of all the cases of executive

authority, would naturally dictate the use of general terms, and would

render it improbable that a specification of certain particulars was

designed as a substitute for those terms, when antecedently used. The

different mode of expression employed in the constitution, in regard to

the two powers, the legislative and the executive, serves to confirm

this inference. In the article which gives the legislative powers of the

government, the expressions are, 'All legislative powers herein granted

shall be vested in a congress of the United States.' In that which

grants the executive power, the expressions are, 'The _executive power_

shall be vested in a President of the United States.' The enumeration

ought therefore to be considered, as intended merely to specify the

principal articles implied in the definition of executive power; leaving

the rest to flow from the general grant of that power, interpreted in

conformity with other parts of the Constitution, and with the principles

of free government. The general doctrine of our Constitution then is,

that the _executive power_ of the nation is vested in the President;

subject only to the _exceptions_ and _qualifications_, which are

expressed in the instrument."[8]

THE MYERS CASE

These enlarged conceptions of the executive power clause have been

ratified by the Supreme Court within recent times. In the Myers case,[9]

decided in 1926, not only was Madison's contention as to the location

of the removal power adopted, and indeed extended, but Hamilton's

general theory as to the proper mode of construing the clause was

unqualifiedly endorsed. Said Chief Justice Taft, speaking for the Court:

"The executive power was given in general terms, strengthened by

specific terms where emphasis was regarded as appropriate, and was

limited by direct expressions where limitation was needed, * * *"[10]

THE CURTISS-WRIGHT CASE

Ten years later Justice Sutherland, speaking for the Court in United

States _v._ Curtiss-Wright Corporation,[11] joined Hamilton's conception

of the President's role in the foreign relations field to the conception

that in this field the National Government is not one of enumerated but

of inherent powers;[12] and the practical conclusion he drew was that

the constitutional objection to delegation of legislative power does not

apply to a delegation by Congress to the President of its "cognate"

powers in this field; that, in short, the merged powers of the two

departments may be put at the President's disposal whenever Congress so

desires.[13]

Nor is it alone in the field of foreign relations that the opening

clause of article II has promoted latitudinarian conceptions of

Presidential power. Especially has his role as "Commander in Chief in

wartime" drawn nourishment from the same source, in recent years. The

matter is treated in later pages.[14]

THEORY OF THE PRESIDENTIAL OFFICE

The looseness of the grants of power to the President has been more than

once the subject of animadversion.[15] This and the unity of the office

furnished a text for opponents of the Constitution while its

ratification was pending. "Here," according to Hamilton, writing in The

Federalist, "the writers against the Constitution, seem to have taken

pains to signalize their talent of misrepresentation."[16] Once the

Constitution was adopted, however, the tables were turned, and some

members of the first Congress, including certain former members of the

Federal Convention, sought to elaborate the monarchical aspects of the

office. They would fain give him a title, _His Excellency_ (already

applied in several States to the governors thereof), _Highness_,

_Elective Majesty_, being suggestions. Ellsworth of Connecticut wished

to see his _name or place_ inserted in the enacting clause of statutes.

They contrived to make a ceremony of the President's appearances before

Congress, his annual address to which, given in person, was answered by

a reply equally formal.[17] They sought to enact that "all writs and

processes, issuing out of the Supreme or circuit courts shall be in the

name of the President of the United States." Although the attempt

failed, owing to opposition in the House, the idea was adopted by the

Supreme Court itself in its first term, that of February 1790, when it

"_ordered_, That (unless, and until, it shall be otherwise provided by

law) all process of this court shall be in the name of 'the President of

the United States,'"[18] and it has never been otherwise provided by

law. Meantime, on October 3, 1789, President Washington had, at the

request of a joint committee of "both Houses of Congress," issued the

first Thanksgiving Proclamation.[19]

The "revolution of 1800" was, in the opinion of its principal author, a

revolution against monarchical tendencies, and making a virtue of the

fact that he was a bad public speaker, Jefferson, in a symbolic gesture,

substituted the written message for the presidential address. But the

claims of the presidential office to power Jefferson in no wise

abated,[20] although Marshall had predicted that he would;[21] to the

contrary he in some respects enlarged upon them. After his day, however,

the office passed into temporary eclipse behind its own creature, the

Cabinet,[22] an ignominy from which Andrew Jackson rescued it. As "the

People's Choice," as all by himself "one of the three _equal_

departments of government,"[23] as the leader of his party, as the

embodiment of the unity of the country,[24] Jackson stamped upon the

Presidency the outstanding features of its final character, thereby

reviving, in the opinion of Henry Jones Ford, "the oldest political

institution of the race, the elective Kingship."[25] The modern theory

of Presidential power was the contribution primarily of Alexander

Hamilton; the modern conception of the Presidential office was the

contribution primarily of Andrew Jackson and his times.

"THE TERM OF FOUR YEARS"

Formerly the term of four years during which the President "shall hold

office" was reckoned from March 4 of the alternate odd years beginning

with 1789. This came about from the circumstance that under the act of

September 13, 1788, of "the Old Congress," the first Wednesday in March,

which was March 4, 1789, was fixed as the time for commencing

proceedings under the said Constitution. Although as a matter of fact

Washington was not inaugurated until April 30 of that year, by an act

approved March 1, 1792, it was provided that the presidential term

should be reckoned from the fourth day of March next succeeding the date

of election. And so things stood until the adoption of the Twentieth

Amendment by which the terms of the President and Vice President end at

noon on the 20th of January.[26]

THE ANTI-THIRD TERM TRADITION

The prevailing sentiment of the Philadelphia Convention favored the

indefinite eligibility of the President. It was Jefferson who raised the

objection that indefinite eligibility would in fact be for life and

degenerate into an inheritance. Prior to 1940 the idea that no President

should hold for more than two terms was generally thought to be a fixed

tradition, although some quibbles had been raised as to the meaning of

the word "term". President Franklin D. Roosevelt's violation of the

tradition led to the proposal by Congress on March 24, 1947, of an

amendment to the Constitution to rescue the tradition by embodying it in

the Constitutional Document. The proposal became a part of the

Constitution on February 27, 1951, in consequence of its adoption by the

necessary thirty-sixth State, which was Minnesota. _See_ pp. 54,

1236.[Transcriber's Note: Page 1236 is blank.][27]

Clause 2. Each State shall appoint, in such Manner as the Legislature

thereof may direct, a Number of Electors, equal to the whole Number of

Senators and Representatives to which the State may be entitled in the

Congress; but no Senator or Representative, or Person holding an Office

of Trust or Profit under the United States, shall be appointed an

Elector.

Clause 3. The Electors shall meet in their respective States, and vote

by Ballot for two Persons, of whom one at least shall not be an

Inhabitant of the same State with themselves. And they shall make a List

of all the Persons voted for, and of the Number of Votes for each; which

List they shall sign and certify, and transmit sealed to the Seat of

Government of the United States, directed to the President of the

Senate. The President of the Senate shall, in the Presence of the Senate

and House of Representatives, open all the Certificates, and the Votes

shall then be counted. The Person having the greatest Number of Votes

shall be the President, if such Number be a Majority of the whole Number

of Electors appointed; and if there be more than one who have such

Majority, and have an equal Number of Votes, then the House of

Representatives shall immediately chuse by Ballot one of them for

President; and if no Person have a Majority, then from the five highest

on the List the said House shall in like Manner chuse the President. But

in chusing the President, the Votes shall be taken by States, the

Representation from each State having one Vote; A quorum for this

Purpose shall consist of a Member or Members from two thirds of the

States, and a Majority of all the States shall be necessary to a Choice.

In every Case, after the Choice of the President, the Person having the

greatest Number of Votes of the Electors shall be the Vice President.

But if there should remain two or more who have equal Votes, the Senate

shall chuse from them by Ballot the Vice President.

Clause 4. The Congress may determine the Time of chusing the Electors,

and the Day on which they shall give their Votes; which Day shall be the

same throughout the United States.

Clause 5. No Person except a natural born Citizen, or a Citizen of the

United States, at the time of the Adoption of this Constitution, shall

be eligible to the Office of President; neither shall any Person be

eligible to that Office who shall not have attained to the Age of thirty

five Years, and been fourteen Years a Resident within the United States.

Clause 6. In Case of the Removal of the President from Office, or of his

Death, Resignation, or Inability to discharge the Powers and Duties of

the said Office, the Same shall devolve on the Vice President, and the

Congress may by law provide for the Case of Removal, Death, Resignation

or Inability, both of the President and Vice President, declaring what

Officer shall then act as President, and such Officer shall act

accordingly, until the Disability be removed, or a President shall be

elected.

Clause 7. The President shall, at stated Times, receive for his

Services, a Compensation, which shall neither be encreased nor

diminished during the Period for which he shall have been elected, and

he shall not receive within that Period any other Emolument from the

United States, or any of them.

Clause 8. Before he enter on the Execution of his Office, he shall take

the following Oath or Affirmation:--"I do solemnly swear (or affirm)

that I will faithfully execute the Office of President of the United

States, and will to the best of my Ability, preserve, protect and defend

the Constitution of the United States."

Maintenance of the Office of President

"THE ELECTORAL COLLEGE"

The word "appoint" is used in clause 2 "as conveying the broadest power

of determination."[28] This power has been used. "Therefore, on

reference to contemporaneous and subsequent action under the clause, we

should expect to find, as we do, that various modes of choosing the

electors were pursued, as, by the legislature itself on joint ballot; by

the legislature through a concurrent vote of the two houses; by vote of

the people for a general ticket; by vote of the people in districts; by

choice partly by the people voting in districts and partly by

legislature; by choice by the legislature from candidates voted for by

the people in districts; and in other ways, as, notably, by North

Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised

as to the power of the State to appoint, in any mode its legislature saw

fit to adopt, and none that a single method, applicable without

exception, must be pursued in the absence of an amendment to the

Constitution. The district system was largely considered the most

equitable, and Madison wrote that it was that system which was

contemplated by the framers of the Constitution, although it was soon

seen that its adoption by some States might place them at a disadvantage

by a division of their strength, and that a uniform rule was

preferable."[29] In the Federal Convention James Wilson had proposed

that the Electors be "taken by lot from the national Legislature," but

the suggestion failed to come to a vote.[30]

CONSTITUTIONAL STATUS OF ELECTORS

Dealing with the question of the constitutional status of the Electors,

the Court said in 1890: "The sole function of the presidential electors

is to cast, certify and transmit the vote of the State for President and

Vice President of the nation. Although the electors are appointed and

act under and pursuant to the Constitution of the United States, they

are no more officers or agents of the United States than are the members

of the State legislatures when acting as electors of federal senators,

or the people of the States when acting as electors of representatives

in Congress. * * * In accord with the provisions of the Constitution,

Congress has determined the time as of which the number of electors

shall be ascertained, and the days on which they shall be appointed and

shall meet and vote in the States, and on which their votes shall be

counted in Congress; has provided for the filling by each State, in such

manner as its legislature may prescribe, of vacancies in its college of

electors; and has regulated the manner of certifying and transmitting

their votes to the seat of the national government, and the course of

proceeding in their opening and counting them."[31] The truth of the

matter is that the Electors are not "officers" at all, by the usual

tests of office.[32] They have neither tenure nor salary, and having

performed their single function they cease to exist as Electors. This

function is, moreover, "a federal function,"[33] their capacity to

perform which results from no power which was originally resident in the

States, but springs directly from the Constitution of the United

States.[34] In the face, therefore, of the proposition that Electors are

State officers, the Court has upheld the power of Congress to protect

the right of all citizens who are entitled to vote to lend aid and

support in any legal manner to the election of any legally qualified

person as a Presidential Elector;[35] and more recently its power to

protect the choice of Electors from fraud or corruption.[36] "'If this

government,' said the Court, 'is anything more than a mere aggregation

of delegated agents of other States and governments, each of which is

superior to the general government, it must have the power to protect

the elections on which its existence depends from violence and

corruption. If it has not this power it is left helpless before the two

great natural and historical enemies of all republics, open violence and

insidious corruption.'"[37] The conception of Electors as State officers

is still, nevertheless, of some importance, as was shown in the recent

case of Ray _v._ Blair,[38] which is dealt with in connection with

Amendment XII.[39]

"NATURAL-BORN" CITIZEN

Clause 3 of this section, while requiring that the Electors each vote

for two persons, did not require them to distinguish their choices for

President and Vice President, the assumption being that the Vice

President would be the runner-up of the successful candidate for

President. As a result of this arrangement the election of 1800 produced

a dangerous tie between Jefferson and Burr, the candidates of the

Republican-Democrat Party for President and Vice President respectively.

Amendment XII, which was adopted in 1803 and replaces clause 3, makes a

recurrence of the 1800 contretemps impossible. _See_ pp. 941-942. Clause

4 testifies still further to the national character of Presidential

Electors. Clause 5 is today chiefly of historical interest, all

Presidents since, and including Martin Van Buren, except his immediate

successor, William Henry Harrison, having been born in the United States

subsequently to the Declaration of Independence. The question, however,

has been frequently mooted, whether a child born abroad of American

parents is "a natural-born citizen" in the sense of this clause. The

answer depends upon whether the definition of "citizens of the United

States" in section I of Amendment XIV is to be given an exclusive or

inclusive interpretation. _See_ pp. 963-964.

PRESIDENTIAL SUCCESSION

Was it the thought of the Constitution that a Vice President, in

succeeding to "the powers and duties" of the office of President, should

succeed also to the title? In answering this question in the affirmative

in 1841, John Tyler established a precedent which has been followed ever

since; but inasmuch as all successions have taken place in consequence

of the death in office of a President, the precedent would not

necessarily hold in the case of a succession on account of the temporary

inability of the incumbent President. Nor has any procedure been

established for determining the question of inability, with the result

that in the two instances of disability which have occurred, those of

Presidents Garfield and Wilson, the former continued in office until his

death and the other, after his partial recovery, till the end of his

term.

The Act of 1792

In pursuance of its power to provide for the disappearance, whether

permanently or temporarily, from the scene of both President and Vice

President, Congress has passed three Presidential Succession Acts. A law

enacted March 1, 1792[40] provided for the succession first of the

President _pro tempore_ of the Senate and then of the Speaker; but in

the event that both of these offices were vacant, then the Secretary of

State was to inform the executive of each State of the fact and at the

same time give public notice that Electors will be appointed in each

State to elect a President and Vice President, unless the regular time

of such election was so near at hand as to render the step unnecessary.

It is unlikely that Congress ever passed a more ill-considered law. As

Madison pointed out at the time, it violated the principle of the

Separation of Powers and flouted the probability that neither the

President _pro tempore_ nor the Speaker is an "officer" in the sense of

this paragraph of the Constitution. It thus contemplated the possibility

of there being nobody to exercise the powers of the President for an

indefinite period, and at the same time set at naught, by the provision

made for an interim presidential election, the synchrony evidently

contemplated by the Constitution in the choice of a President with a new

House of Representatives and a new one-third of the Senate. Yet this

inadequate enactment remained on the statute book for nearly one

hundred years, becoming all the time more and more unworkable from

obsolescence. One provision of it, moreover, still survives, that which

ordains that the only evidence of refusal to accept, or of resignation

from the office of President or Vice President, shall be an instrument

in writing declaring the same and subscribed by the person refusing to

accept, or resigning, as the case may be, and delivered into the office

of the Secretary of State.[41]

The Acts of 1886 and 1947

By the Presidential Succession Act of January 19, 1886,[42] recently

repealed, Congress provided that, in case of the disqualification of

both President and Vice President, the Secretary of State should act as

President provided he possessed the qualifications laid down in clause

5, above; if not, then the Secretary of the Treasury, etc. The act

apparently assumed that while a member of the Cabinet acted as President

he would retain his Cabinet post. The Succession Act now in force was

urged by President Truman, who argued that it was "undemocratic" for a

Vice President who had succeeded to the Presidency to be able to appoint

his own successor. By the act of July 18, 1947[43] the Speaker of the

House and the President _pro tempore_ of the Senate are put ahead of the

members of the Cabinet in the order of succession, but when either

succeeds he must resign both his post and his seat in Congress; and a

member of the Cabinet must in the like situation resign his Cabinet

post. The new act also implements Amendment XX by providing for

vacancies due to failure to qualify of both a newly elected President

and Vice President.

COMPENSATION AND EMOLUMENTS

Clause 7 may be advantageously considered in the light of what has been

determined as to the application of the parallel provision regarding

judicial salaries. _See_ pp. 530-531.[44]

OATH OF OFFICE

What is the time relationship between a President's assumption of office

and his taking the oath? Apparently the former comes first. This answer

seems to be required by the language of the clause itself, and is

further supported by the fact that, while the act of March 1, 1792

assumes that Washington became President March 4, 1789, he did not take

the oath till April 30th. Also, in the parallel case of the coronation

oath of the British Monarch, its taking has been at times postponed for

years after the heir's succession.

Effect of the Oath

Does the oath add anything to the President's powers? Again to judge

from its English-British antecedent, its informing purpose is to

restrain rather than to aggrandize power. Jackson, it is true, appealed

to the oath in his Bank Veto Message of July 10, 1832; and Lincoln did

so in his Message of July 4, 1861; as did Johnson's counsel in his

impeachment trial; but in each of these instances the Presidential

exercise of power involved rested primarily on other grounds.

Section 2. Clause 1. The President shall be Commander in Chief

of the Army and Navy of the United States, and of the Militia of the

several States, when called into the actual Service of the United

States; he may require the Opinion, in writing, of the principal Officer

in each of the executive Departments, upon any Subject relating to the

Duties of their respective Offices, and he shall have Power to grant

Reprieves and Pardons for Offences against the United States, except in

Cases of Impeachment.

The Commander in Chiefship

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