Commerce, regulation of interstate, 22;

law of, 63–88;

regulation of, belongs to sovereignty, 63, 64;

defined, 67;

State and interstate, 63–88;

unlawful restraint of, 72;

when an article is of, 73;

distinguished from manufacture, 73;

“taxation of commerce,” meaning of, 75;

principal of regulation of, 76, 77, 78;

interstate, 78, 88;

intrastate, 79, 80, 88;

“foreign commerce,” 87, 88

Confederation, a league, 7;

unable to regulate commerce, 66

Congress, law making by, 2, 18–50;

determines extent of taxation, regulates commerce, protects

citizens, determines jurisdiction of federal courts,

assigns duties and powers to the President, 25;

powers of, political, 26;

abuse of powers by, 27;

checks on, 27;

test of authority of, 30, 31;

powers of, derived, 34, 35;

war power of, 46;

power over territory, 48, 49, 50;

power of, over commerce, 63–88;

limitation of powers of, as to commerce, 69–88;

debates in, as evidence in court, 127;

decides political questions, 128;

governs territory, 158–163;

power over outlying possessions, 161, 162, 163;

checks on, 170–176;

unconstitutional legislation, 218, 219

Constitution, the supreme law, 1;

essential to sovereignty, 2;

ordained by the people, 2;

a practical instrument, 19, 20;

provides only for judicial interpretation, 24;

relative rank with act of Congress, 24, 25;

unwritten, 27;

how amended, 180, 181;

administrative provisions in, 191, 192;

essential features of, 194

Constitutions, State, 1776–1787, 21;

limit Legislatures, 22, 23

Consuls, 119, 120, 137

Contracts, between citizens of different States, 37, 38;

obligation of, 37;

a lawful, 40;

law of, the, 89–101;

obligation of, under the Constitution, 93, 94;

constitutional use of the word, 98

Convention, 107, 108

Convention (federal), 6;

to amend Constitution, 180, 181

Cooley, quoted, 205

Copyrights, 36, 43

Corporations, municipal, 59;

as citizen, 139, 142;

rights of, 139, 140, 149

Counterfeiting, 36, 41, 42

Counties, jurisdiction over, 48

Courts, inferior, 122 _et seq._

Courts, Territorial, 125

Courts, Supreme and inferior, 113, 122, 123;

jurisdiction of federal, 115 _et seq._;

Territorial, 125;

political questions and the, 126;

do not decide political questions, 128;

province and duty of, 129;

judicial supremacy, 129–131;

essential power of the Supreme Court, 142, 143;

federal sitting as State, 144, 145;

limitation of federal, 178

D

Debts, of the U. S., 40

Domain, eminent, exercise of, by U. S. or the States, 95, 97, 98,

99, 100

“Due process of law,” charitable institutions not entitled to, or

a person, 60;

a fundamental right, 95, 204, 220

Duties, export, 22; uniform, 40, 171

Duty, a ministerial, 110, 111, 112

E

Election, disputed, of President or Vice-President, 180

Elections, disputed presidential, 167

Electors, denial of right of, 179

England, as sovereign, 2

Excises, 40, 171

Executive, law of, 102–112;

checks on, 166–169

Exemption, from taxation (Churches, Schools, etc.), 60;

from income tax, 61

Expatriation, 222

Expenditures, public statement of, 22

_Ex post facto_ law, 22, 171, 177, 224

F

_Federalist, The_, quoted or cited, 4, 8, 12, 13, 17, 33, 34,

35, 36, 116, 117, 118, 187

Fee, license, 74

Felonies, 44

Florida, as a territory, status in U. S., 127

France, as sovereign, 2

Fugitives from justice, 151, 152;

political, 153, 154

Ft. Leavenworth Military Reservation, 48

G

Gallatin, Albert, on Louisiana purchase, 14, 15

Government, representative, 2;

republican form guaranteed, 6;

a unit, 19;

distinguished from sovereignty, 23;

limited, affected by Sixteenth Amendment, 23, 24;

national, when supreme, 34;

nature of national, 38;

Marshall’s differentiation between State and federal, 51;

of the U. S., distinct from the State, 116;

what constitutes a lawful State, 128;

principal of separation of powers of, 135, 136;

of the U. S. power of, 137, 138;

what is a republican form of? 154, 155, 156

Governor, power of extradition, 151, 152;

issues writs of election, 179

H

Habeas Corpus, 21, 143

Hamilton, on National and State systems, 13;

as interpreter of the Constitution, 28;

as to State and federal sovereignty 35, 36;

on residuary sovereignty, 177;

on the Constitution as a Bill of Rights, 187

Hayes, President, on power of the President, 109, 110

House of Representatives (U. S.) members, 103, 172, 179;

election of, 182, 216.

(_See also_ _Congress_, _Powers_.)

I

Impeachment, 107

Imports, 40

Imposts, 171

Information, prosecution by, 220

Interstate commerce, testimony before, 225, 226

J

Jefferson, on Louisiana purchase, 13;

as interpreter of the Constitution, 28

Johnson, President, 103

Judges, bound by the Constitution, 1

Judiciary Act, 141

Judiciary, as agent, 3, 4;

law of judicial power, the, 113–145;

supremacy of, 129–133

Jurisdiction, of congress and legislatures, 18–50;

principle of, 38;

of the U. S., 45, 58, 63;

of a State, 48;

State and federal compared, 51, 68, 72, 73, 78, 80, 81, 82, 86,

91, 92, 95, 97;

the test, 53;

of the Executive, 102–112;

of the Judiciary, 113–145;

of Supreme and of inferior federal courts, 118, 119, 120, 122, 123;

admiralty, 121;

federal and State distinguished, 124, 125;

as to political questions, 126, 127;

original of Supreme Court, 136, 137;

national commercial, 137;

principal of State, 146, 147;

no new conferred by the constitution, 146;

determines citizenship, 151

_Jury_, as used in the Constitution, 209, 210;

indictment of, 220

Justice, principles of natural, 50

K

Kansas, jurisdiction over Ft. Leavenworth Military Reservation, 48

Kentucky and Virginia Resolutions, 17 (note)

L

Law, presumption of, 31;

test of constitutionality, 30, 31;

bankrupt, insolvent, 37, 38;

postal, 42;

patent, 44;

common, 45;

inspection, 81;

due process of, 95;

what is constitutional? 132, 135;

_ex post facto_, 22, 171, 224

Legislatures, State, powers of, 22, 35–37, 53, 90;

discretion of, 54, 79;

appoints presidential electors, 167;

office of, 218

Limitations, the law of, 164–190

Lincoln, Levi, on Louisiana purchase, 14

Lincoln, President, on law of limitations, 166;

on tenure of Cabinet officers, 105

Liquors, 97, 98

Louisiana, power to purchase, 13, 14, 15

M

Madison, defines a republic, 4, 5;

on power of national government, 12, 13

Mails, 42;

and lottery tickets, 43, 85, 86

Mandamus, 111

Manufacture, distinguished from commerce, 73;

right to, 98

Marque and reprisal, 37

Marshall, Chief Justice, defines U. S. government, 6, 7;

on taxing power, 9, 10;

on war and treaty-making powers, 15;

enthrones Hamilton’s ideas, 28;

on sovereignty, 34;

distinction by, between State and federal, 51;

on regulation of commerce, 63, 119;

on international law, 148;

lays down principle of constitutional interpretation, 186, 187

Massachusetts, constitution of 1780, 5

Measures, 36, 37

Ministers, public, 119, 120, 137

Monopolies, 72, 83, 84

N

Naturalization, 221

Nobility, title of, 172

Nuisance, 97

Nullification, 17

O

Oath, 2

Office, legal right to, 91;

constitutional meaning of, 103

P

Package, original, 75

Parliament, 21

Parties, political, interpret the Constitution, 27, 28

Patent rights, 36, 43

People, The, sovereign, 2;

author of supreme law, 5, 6;

power to amend constitution, 7;

sovereignty of, 12, 13

Piracies, 44, 45

Polygamy, 203

Possessions, outlying, power of Congress over, 161, 162, 163

Post offices, 42

Post roads, 42

Powers, derivative 2;

original and derivative distinguished, 5;

taxing, 9;

legislative, 18–50;

defined, 18;

character of, 18–50;

separation of, 19, 20;

of respective Houses, 20, 21, 22;

limitations of, 18, 22, 23, 24;

American doctrine of, 19;

parliamentary, 20, 21;

nature and extent of Constitutional, 21;

of Congress reflect eighteenth century ideas, 25, 26;

of Congress derivative, 34, 35;

implied, 36;

conflict between State and federal, 36–39;

implied or expressed, 38, 39, 55;

police, 42–45, 73, 74, 79, 81, 91, 92, 98, 121, 205–208;

of Congress as to crime or immorality, 42;

taxing, 52, _et seq._;

of State governments, 55, 56;

judicial review of taxing, 57, 58;

police powers of U. S. and States distinguished, 68;

residuary of States, 73;

taxing by State and U. S. defined, 76;

law of executive, 102–112;

law of judicial, 113–145;

the U. S. Government, 137–139;

exact division between State and federal unknown, 183;

delegated, 191

Preamble, 26, 76

President, veto of, 2;

military and naval power, 46;

executes U. S. laws, 46;

character of his decisions, 46, 47;

nature of powers of, 102–112;

oath of, 102;

trial of, 103;

test of execution of office of, 103;

Johnson, 103;

impeachment of, 102, 103, 107, 108

Principles of Constitutional law, as to sovereignty, 9, 39, 217;

separation of powers, 19;

limitations, 22, 27;

learned from judicial decisions, 30;

as to adequate federal powers, 33, 34, 54;

of natural justice, 50;

as to commerce, 70;

as to the police power, 92;

as to obligation of contracts, 93;

consequentive damages, 99;

of judicial power, 130; 136;

of federal judicial jurisdiction, 142, 143;

of State comity, 147, 150;

as to powers of Congress, 183;

constitutional interpretation, 186, 187;

fundamental rights, 191–211;

equality of citizens, 217;

due process of law, 219, 220;

of citizenship, 221

Prohibition, 97, 98

R

Receipts, publication of, 22

Residuary sovereignty, 12

Revenue, bills of, 172

Rights, the law of fundamental, 190–211;

religious liberty, 191, 195;

freedom of speech, of the press, 196, 197;

right of petition, 197;

exemption from searches and seizures, 197, 198, 225;

life, liberty, property, 199;

realized through the Judiciary, 201;

relation to Constitutional limitations, 202;

trial by jury, 209, 210;

bills of, 210, 211

S

Senate (U. S.) members, 103, 172, 179;

treaties, 104;

as Court of Impeachment, 108;

represents the States, 180;

election of, 216.

(_See also_ _Congress_, _Powers_.)

Services, Constitutional meaning of, 103

Sovereignty, agent of, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12;

delegated to Congress, 19, 20;

of the people, 34;

Hamilton on State and federal, 35, 36;

national, 38, 39, 41, 100;

possessed by U. S. and by States, 47;

State distinguished from federal, 51;

as to commerce, 63;

of Congress over outlying possessions, 161–163

State (in the Union), quasi-sovereign, 2;

Legislature, 2;

sovereignty of, 6–9, 55, 100;

supremacy of, 34;

powers of Legislatures derivative, 35, 36

State, powers of legislature extinguished by Congress, 36;

implied powers of, 36;

power to punish counterfeiting, 41, 42;

police power of, 43, 44, 45, 79, 81, 91, 92, 98, 121, 205, 206,

207, 208;

meaning of “State” in the Constitution, 47, 48, 141;

and U. S. possess sovereignty, 47;

subdivisions of, 48;

system of State government distinguished from federal, 51;

power of, over commerce, 64, 67;

limitation of jurisdiction of, 82;

may be petitioned, not suable, 114, 115;

what constitutes a republican form of, 128;

suability, 140;

the word “States” in the Constitution, 141;

jurisdiction of, determined, 147;

principle of relation of State to State, 147, 148;

law of in federal courts, 148;

the States mutually foreign to one another, 148;

rights of citizens of, 149;

admission of a, 156, 157;

the States indestructible, 158;

new States, 173;

limitation of power of, 176–181;

the States as limitations on the U. S., 179, 180;

appoints presidential electors, 179;

subdivision of, 180;

guaranteed a republican form of government, 180;

States and amendment of the Constitution, 180, 181;

citizenship, 213

Suffrage, 223

Supreme Court of the U. S., Marshall’s decisions, 28;

principle of interpretation, 31, 34, 39, 186;

on boundary between the federal and State systems, 51;

part of the judicial department, 56;

powers not delegated, 59;

has not defined power over commerce, 63;

nature of power of U. S. over commerce, 65, 76, 77;

decisions on Anti-Trust Act, 83, 84;

on obligation of contracts, 93;

adequacy of its authority, 106;

on executive and ministerial powers, 112;

judicial power of, 113, 114 _et seq._;

jurisdiction, original and appellate, 119–136;

on the war power, 127;

nature of jurisdiction, 129–142;

determines constitutional law, 133–135;

jurisdiction under the Judiciary Act, 141;

relation to State tribunals, 144, 145;

as to republican form of government, 155, 156;

decision of as to power of Congress over Territories and

possessions, 160–163, 183, 184, 201;

on delegated powers, 175;

jurisdiction when a State is a party, 178;

function of the Judiciary, 185;

power of U. S. to acquire territory, 193;

power vested in, 194;

on the nature of American institutions, 210, 211;

on citizens’ rights, 214;

on “due process of law,” 220;

on the Fifteenth Amendment, 222, 223

“Sweeping Clause,” 26

T

Tax, export, 22, 52;

essentials of a good, 52, 60, 61;

income, 58 (_and see under_ Amendment);

exemptions, 60;

direct, indirect, 61

Taxation, law of, 51–62;

by a State, 52–56;

national, 54;

power of U. S. over, 65, 66

Tender, legal, 38, 39

Territory, when sovereign, 47;

power of Congress over, 48, 141, 183;

the law of, and of territories, 146–163;

becoming a State, 157, 158;

governed by Congress, 159, 160, 162, 163

Texas, law of, regulating commerce, 80

Tickets, lottery, 43, 83, 85

Treason, 172

Treaties, 104;

in the Senate, 180

U

United States, supreme law of, 2 _et seq._;

laws of, by whom made, 2;

guarantees republican form of government, 6;

sovereignty of, 8–13;

organization of, reflects popular will, 18;

governmental functions of, 19, 20;

powers of, 20 _et seq._;

admiralty, jurisdiction of, 45, 46;

war power of, 46;

and States possess sovereignty, 47;

civil system of, distinguished from State, 51;

powers of, as to States, 54–57;

power over commerce, 63–88;

the peace of, 85;

police power of, 95;

citizenship, 214, 216, 217

V

Veto, 2

Vice-President, 108

W

Waite, Chief Justice, quoted, 92

Waters, navigable, 46

Webster, Daniel, his definition of law, 205

Weights, 36, 37

Wilson, James, on the Constitution a Bill of Rights, 187, 188

FOOTNOTES

[1] Art. vi., 2, 3, and Preamble.

[2] Art. i., 7: 2.

[3] The Supreme Court of Mississippi in Sproule _v._ Fredericks, 69

Miss. 898 (1892), decided that the Constitutional Convention of that

State (1890) “wielded the powers of sovereignty specially delegated to

it, for the purpose and the occasion, by the whole electoral body, for

the good of the whole Commonwealth.” The Supreme Court of Pennsylvania

in Wells _v._ Bain, 75 Pa. St. 39 (1874), decided that the Convention

of 1872 was “not a co-ordinate branch of the government,” and possessed

only “delegated powers.” The Supreme Court of the United States,

through Marshall, C. J., decided in McCulloch _v._ Maryland, 4 Wheaton,

316 (1819), that the Constitution which came from the hands of the

Federal Convention of 1787 “was a mere proposal, without obligation,

or pretensions to it. By the Convention, by Congress, and by the State

Legislatures, the instrument was submitted to the people. They acted

upon it, in the only manner in which they can act safely, effectively,

and wisely, on such a subject, by assembling in convention. It is true

they assembled in their several States; and where else should they

have assembled? No political dreamer was ever wild enough to think of

breaking down the lines which separate the States, and of compounding

the American people into one common mass. Of consequence when they

act, they act in their States. But the measures they adopt do not, on

that account, cease to be the measures of the people themselves, or

become the measures of the State governments. From these conventions

the Constitution derives its whole authority. The government proceeds

directly from the people; is “ordained and established” in the name of

the people; and is declared to be ordained, “in order to@ form a more

perfect union, establish justice, insure domestic tranquillity, and

secure the blessings of liberty to themselves and to their posterity.”

The assent of the States in their sovereign capacity is implied in

calling a convention, and thus submitting that instrument to the

people. But the people were at perfect liberty to accept or reject it;

and their act was final. It required not the affirmance, and could

not be negatived by the State governments. The Constitution when thus

adopted was of complete obligation, and bound the State sovereignties.”

The character of the Constitution, its purport and principles, is

examined in Martin _v._ Hunter’s Lessee, 1 Wheaton, 304 (1816).

Decision by Story, J.

[4] No. xxxix.

[5] Art. v.

[6] Constitution (1780 to date) Pt. I. Art. iv. The words “substitutes

and agents” may be considered equivalent to the modern words

“administrative officers.”

[7] Art. iv., 4.

[8] McCulloch _v._ Maryland, note, _supra_.

[9] McCulloch _v._ Maryland, note, _supra_.

[10] _Idem._ (The language of the Court slightly paraphrased.)

[11] Art. v.

[12] _The Federalist_, No. lxii.

[13] McCulloch _v._ Maryland.

[14] Art. i., 8: 1; but see Amendment XVI.

[15] McCulloch _v._ Maryland.

[16] Articles i., 8: 5; ii., 2: 2; i., 10: 3; i., 8: 2.

[17] The License Cases, 5 Howard, 504 (1846); Kimmish _v._ Ball, 129

U. S., 217 (1889); Cook _v._ Marshall Company, 196 U. S., 261.

[18] Discussed at length in the chapters on State Comity, and Commerce.

[19] Art. iv. (and preceding note).

[20] See also Chapters XII and XIII.

[21] Barron _v._ Baltimore, 7 Peters, 243 (1833).

[22] No. xxxix.

[23] Cohens _v._ Virginia, 6 Wheaton, 382 (1821). Madison’s thought

is incorporated into Weston _et al._ _v._ the City of Charleston, 2

Peters, 466 (1829.)

[24] _The Federalist_, No. lxxxii.

[25] Gallatin’s _Writings_, i., 11.

[26] Sustained by Downes _v._ Bidwell, 182 U. S., 244 (1901).

[27] The American Insurance Company _v._ Canter, 1 Peters, 511 (1828).

[28] Compare the Preamble. The entire discussion in _The Federalist_ is

of the conformity of the Constitution to a republican government and of

the necessity of governmental powers adequate to governmental purposes.

[29] Art. x.

[30] Marbury _v._ Madison, 1 Cranch, 176 (1803).

[31] Every question in constitutional law, in the United States, sooner

or later leads back to a question of sovereignty. What that sovereignty

is can be known only by its operation,—that is, by political

experience. What powers are delegated by the Constitution is the

question answered (at least in part) by courts of law and legislatures,

by publicists and by the actual administration of government. Widely

divergent interpretations of that sovereignty and that law have been

held throughout our history as a nation. These divergent opinions are

recorded in the Debates during the formation and ratification of the

Constitution; in the discussions incident to the Kentucky and Virginia

Resolutions of 1798; in the discussions relating to Nullification, in

1833; again in 1860 and immediately prior; and in various decisions

of the Supreme Court of the United States. Chief Justice Marshall’s

decisions (some thirty-six in number), the opinion of that Court in his

time, remain the classic interpretation of national sovereignty. _The

Federalist_ remains the classic contemporaneous interpretation of the

Constitution.

The issue involved is, fundamentally, one of _functions_, and is viewed

at different times with different understandings. As a practical

question, it is one of _jurisdiction_ as legally understood, but as a

question of _service_ as politically understood. Here enter many and

diverse factors as morals, industry, communal interest, public safety,

social needs, and the like. Questions growing out of these are not and

cannot be decided finally by any generation. Each generation interprets

these factors. Thus constitutional interpretation becomes, not a fixed

quantity, but an adjustment to reason and necessity. Prudence dictates

that interpretation be conservative. The constitutional and political

history of America must be read along with its constitutional law.

In addition to cases already cited in this chapter, the following

may advantageously be read, though each contains matter of special

application to other aspects of the subject: _Ex parte_ Siebold, 100

U. S., 371 (1879); The Civil Rights Cases, 109 U. S., 3 (1883); Rogers

_v._ Alabama, 192 U. S., 226 (1904).

[32] Marbury _v._ Madison, 1 Cranch, 177.

[33] Art. i., 1.

[34] Art. vi., 2.

[35] A typical formulation in Massachusetts, (1780) Pt. I., xxx.

Discussed in Taylor _v._ Place, 4 R. I., 324 (1856.)

[36] McCulloch _v._ Maryland, 4 Wheaton, 316.

[37] Art. i., v.; Amendment XII.

[38] “The Sources and Authorship of the Constitution,” in the author’s

_Constitutional History of the United States_, iii., 464–515.

[39] Art. i., 8: 1.

[40] Art. i., 9: 2.

[41] _Id._, 3.

[42] _Id._, 5.

[43] _Id._, 6.

[44] _Id._, 7.

[45] See the Chapters on _The Law of Limitations_, and _The Law of

Fundamental Rights_.

[46] _Pennsylvania_, 1873, Art. i., 26.

[47] Thus annulling Art. i., 2: 3.

[48] It will be profitable to compare this amendment with the doctrine

laid down in Marbury _v._ Madison, 1 Cranch, 137. See also _The

Reconciliation of Government and Liberty_, J. W. Burgess (1915).

[49] The fundamental principle of judicial interpretation is laid down

in Marbury _v._ Madison; the principle is examined in the Chapter on

_The Law of Judicial Power_.

[50] Art. iii.

[51] This point is elaborated and examined by the Supreme Court

in the decision declaring the Civil Rights Bill of April 9, 1866,

unconstitutional. Civil Rights Cases, 109 U. S., 3 (1883). The doctrine

annunciated is that Congress has no power to legislate _generally_

upon subjects, power over which is reserved to the States by the Tenth

Amendment.

[52] See authorities at close of preceding Chapter; also Chapter XI.

[53] In this connection as to the President see Field _v._ Clark, 143

U. S., 649 (1892).

[54] Art. i., 8: 18.

[55] Preamble. As to “necessary and proper,” see United States _v._

Fisher, 2 Cranch, 396; McCulloch _v._ Maryland, 4 Wheaton, 421.

[56] U. S. _v._ Fisher, _supra_.

[57] The great opinions interpretative of the Constitution have

each their historical setting. Illustration of this is given in the

annotated editions of Marshall’s decisions, _e. g._, J. P. Cotton’s

edition, 2 vols. 1905.

[58] For a detailed history of the first fifteen amendments see the

author’s _Constitutional History of the United States_; the social and

political history from 1789 to 1870 are related, respectively, by John

Bach McMaster in his _History of the People of the United States_, and

by James Schouler in his _History of the United States_. J. F. Rhodes

in his _History of the United States from the Compromise of 1850_,

7 vols. (1850–1877), gives the history of congressional legislation

and of judicial interpretation during the period. Much of the history

relevant to the great decisions of the Court is given in the decisions.

[59] McCulloch _v._ Maryland, 4 Wheaton, 316 (1819). Many later

decisions apply this principle.

For an examination of the character and scope of the Legislative

Department, see

Taylor _v._ Place, 4 R. I., 324 (1856); Dalby _v._ Wolf, 14 Iowa, 228

(1862); Stone _v._ City of Charleston, 114 Mass., 214 (1873); Barrno

_v._ Baltimore, 7 Peters, 243 (1833); Calder _v._ Bull, 3 Dallas, 386

(1798).

The powers of Congress over taxation, commerce, the currency, war,

territories, outlying possessions, etc., are particularly examined

under appropriate headings in later chapters.

In addition to cases cited in the present Chapter, and to the above,

and relating to the powers of Congress, see Gibbons _v._ Ogden, 9

Wheaton, 1 (1824); The Mayor, etc., of the City of New York _v._ Miln,

11 Peters, 102 (1837); The License Cases, 5 Howard, 504 (1847); Sinnot

_v._ Davenport, 22 Howard, 227 (1859); Gilman _v._ Philadelphia, 3

Wallace, 713 (1865); Henderson _et al._ Mayor of the City of New York,

_et al._ Commissioners of Immigration _v._ North German Lloyd, 92

U. S., 259 (1875); Hull _v._ De Cuir, 95 U. S., 485 (1877); Pensacola

Telegraph Co. _v._ Western Union Telegraph Co., 96 U. S., 1 (1877);

County of Mobile _v._ Kimball, 102 U. S., 691 (1880); Williamette Iron

Bridge Co. _v._ Hatch, 125 U. S., 1 (1888).

The best brief treatise on the legislative in America is _American

Legislatures and Legislative Methods_, by Paul S. Reinsch, 1907;

the most exhaustive and authoritative treatise is _Constitutional

Limitations_, by Thomas M. Cooley. The general powers of Congress are

discussed by Justice Story in his _Commentaries on the Constitution_,

and by Chancellor Kent in his _Commentaries on American Law_.

See also the authorities cited in the present work on _The Law of the

Judicial Power_.

[60] No. xvi.

[61] No. xxxi.

[62] McCulloch _v._ Maryland, 4 Wheaton, 316 (1819).

[63] _The Federalist_, xxxii.

[64] _Idem._ and Weaver _v._ Fegely, 29 Pennsylvania State, 27 (1857).

[65] Moore _v._ Houston, 3 S. and R. (Pa.), 179, and the cases cited in

Weaver _v._ Fegely.

[66] See cases as under preceding note.

[67] Baldwin _v._ Hale, 1 Wallace, 223 (1863).

[68] Baldwin _v._ Hale, _supra_.

[69] Juilliard _v._ Greenman, 110 U. S., 421 (1884), citing and quoting

McCulloch _v._ Maryland.

[70] Art. i., 8: 1, 2, 5.

[71] Distinctions as to United States notes, coin, currency, legal

tender, etc., are brought out in Juilliard _v._ Greenman, _supra_;

Hepburn _v._ Griswold, 8 Wallace, 603 (1869); Parker _v._ Davis, 12

Wallace, 79 (1871); Trebilcock _v._ Wilson, 12 Wallace, 687 (1871).

[72] Knox _v._ Lee, Parker _v._ Davis, 12 Wallace, 554 (1871).

[73] An account of the struggles of political parties, and of the

successive decisions of the Supreme Court as to Legal Tender Acts

belongs to the history of the law rather than to a statement of the

essentials of present constitutional law. Accounts of this struggle,

available in histories of the United States, may be compared with

Justice Stephen J. Field’s account in J. Norton Pomeroy’s _Some Account

of the Work of Stephen J. Field as a Legislator, State Judge, and

Justice of the Supreme Court of the United States_ (1881), (Edition

by George C. Gorham, 1895) pp. 65–86. Mr. Justice Field’s dissenting

opinions from the decisions of the Supreme Court which sustain the

constitutionality of the Acts are based largely on his conception of

the principle of the obligation of a contract as contained in the

Constitution respecting “gold and silver coin.” For the history of the

Acts, the decision of the Court invalidating them (1869); the increase

of the membership of the Court (1870); the reversal of the earlier

decisions (1871), and the final decision in Juilliard _v._ Greenman

(1883), consult Rhodes, vi., 268, 270–273, and Note.

[74] Art. i., 10: 1.

[75] Briscoe _v._ Bank of Kentucky, 11 Peters, 257 (1837).

[76] Darrington _v._ The Bank of Alabama, 13; Howard, 12 Briscoe _v._

Bank of Kentucky, _supra_.

[77] Art. i., 8: 6.

[78] _Id._ 5, 10: 1.

[79] United States _v._ Marigold, 9 Howard, 560 (1849); Fox _v._ Ohio,

5 Howard, 410.

[80] _In re_ Rapier, 143 U. S., 110 (1892); Battle _v._ U. S., 209

U. S., 36.

[81] Wheaton _v._ Peters, 8 Peters, 591 (1834).

[82] Vanini _et al._ _v._ Paine _et al._ 1 Harr. (Del.) 65, quoted in

Patterson _v._ Kentucky, 97 U.S., 501 (1878).

[83] _Id._ See also Herdic _v._ Roessler, 109 New York, 127 (1888);

Hill and Co. Lmtd. _v._ Hoover, 220 U.S., 329. “Where a suit is brought

on a contract of which a patent is the subject matter, either to

enforce such contract, or to annul it, the case arises on the contract

and not under the patent laws.” Hartell _v._ Tilghman, 99 U.S., 558.

See also Dale Tile Mfg. Co. _v._ Hyatt, 125 U.S., 46 (1888).

[84] Rex _v._ Dawson, 5 State Trials.

[85] U. S. _v._ Smith, 5 Wheaton, 153 (1820).

[86] Art. iii., 2: 1.

[87] U. S. _v._ Rodgers, 150 U. S., 249 (1893).

[88] Art. i., 8: 11; The Prize Cases, 2 Black, 635 (1862).

[89] Brown _v._ U. S., 8 Cranch, 110; American Insurance Co. _v._

Canter, 1 Peters, 511; Lamar _ex._ _v._ Browne _et al._, 92 U. S., 187;

Mormon Church _v._ U. S., 136 U. S., 1.

[90] Hepburn _v._ Ellzey, 2 Cranch, 445 (1804).

[91] Barron _v._ Baltimore, 7 Peters, 243 (1833).

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

(1889).

[93] Ft. Leavenworth R. R. Co. _v._ Lowe, 114 U. S., 525 (1885).

[94] Art. iv., 3.

[95] Dorr _v._ U. S., 195 U. S., 138 (1904); Hawaii _v._ Mankichi, 190

U. S., 197 (1903); Dooley _v._ U. S., 183 U. S., 151 (1901); Downes

_v._ Bidwell, 182 U. S. (1901); Rasmussen _v._ U. S., 197 U. S., Weems

_v._ U. S., 217 U. S., 349. (But see dissenting opinions in above

cases.)

[96] Downes _v._ Bidwell, _supra_, and cases and laws therein cited and

quoted.

[97] _Idem._

[98] There are powerful dissenting opinions in the various Insular

Cases. The chief objection to the unlimited control of insular

territory by Congress is that Congress itself, by the Constitution,

possesses only limited powers. How can a limited Congress exercise

unlimited powers?

[99] Downes _v._ Bidwell, _supra_. (The Court cites, in confirmation,

the history of Congress and of the British Parliament.)

[100] Bank of Commerce _v._ New York City, 2 Black, 620 (1862) quoting

from McCulloch _v._ Maryland, 4 Wheaton, 431 (1819). The principle is

laid down in the decision that “the sovereignty of a State extends to

everything which exists by its own authority, or is introduced by its

permission; but it does not extend to these means which are employed by

Congress to carry into execution powers conferred on that body by the

people of the United States.” _Id._ 429.

[101] Bank of Commerce _v._ New York City, _supra_.

[102] Loan Association _v._ Topeka, 20 Wallace, 655 (1874), quoting

Cooley on _Constitutional Limitations_, 479.

[103] P. R. Co. _v._ Pennsylvania, 15 Wallace, 300 (1872). The

constitutional use of the taxing power by the United States and by

the several States is examined by Hamilton in _The Federalist_, No.

xxxii.,—the classic contemporaneous exposition of the taxing clauses

of the Constitution. For a judicial examination of these clauses see

Transportation Company _v._ Wheeling, 99 U. S., 273 (1878). The idea

held both by Hamilton and by the Court is that taxation is the exercise

of sovereign power; that “all subjects over which the sovereign power

of a State extends are objects of taxation,” but that “objects over

which it does not extend, as for example, the means and instruments of

the general government, are exempt from taxation.” (The quotation in

Transportation Co. _v._ Wheeling, from McCulloch _v._ Maryland is not

verbally accurate.)

[104] The phrase (_Federalist_, No. lxii.) may be Hamilton’s or

Madison’s.

[105] P. R. Co., _v._ Pennsylvania, 15 Wallace, 300.

[106] This principle applies also in international law.

[107] The principle is established in McCulloch _v._ Maryland.

[108] Kirtland _v._ Hotchkiss, 100 U. S., 491 (1879).

[109] Kirtland _v._ Hotchkiss, _supra_. Thus, “If the law treats the

mortgagee’s interest in the land as real estate for his protection, it

is not easy to see why the law should forbid it to be treated as real

estate for the purpose of taxation.” Savings and Loan Society _v._

Multnomah County, 169 U. S., 421 (1898).

[110] McCulloch _v._ Maryland, _supra_, quoted in The Collector _v._

Day, 11 Wallace, 113 (1870).

[111] The Collector _v._ Day, _supra_. (The Court quotes the Tenth

Amendment, in this connection, as the basis of its decision.)

[112] _Idem._

[113] The Collector _v._ Day, _supra_.

[114] _Id._

[115] The Collector _v._ Day, _supra_.

[116] _Id._

[117] Amendment XVI.

[118] Compare the effect of the Thirteenth Amendment, the Fourteenth

and Fifteenth Amendments on the decision of the Supreme Court in Scott

_v._ Sandford, 19 Howard, 393 (1857).

[119] To what extent a salaried official of a State is exempt from

inclusion of his salary as income taxable under the Sixteenth Amendment

is as yet not determined by judicial decision. “The corporate

franchises, the property, the business, the income of corporations

created by a State may undoubtedly be taxed by the State; but in

imposing such taxes care should be taken not to interfere with or

hamper, directly or by indirection, interstate or foreign commerce, or

any other matter exclusively within the jurisdiction of the Federal

government. This is a principle so often announced by the courts, and

especially by this court (the Supreme Court of the United States) that

it may be received as an axiom of our constitutional jurisprudence.”

Philadelphia and Southern Steamship Company _v._ Pennsylvania, 122

U. S., 326 (1887).

[120] United States _v._ R. R. Co., 17 Wallace, 322 (1873).

[121] See the Chapter on _The Law of Fundamental Rights_, _post_.

[122] Wisconsin Central R. R. Co. _v._ Price County, 133 U. S.,

496 (1890). As to exemptions, the decisions are conflicting. Not

infrequently notices may be seen of exemption of manufacturing plants,

or other industrials, from taxation, if they locate within a community.

Mississippi in its constitution of 1890 made such exemptions by special

ordinance. Such exemption has been held valid in Franklin Needle

Co. _v._ Franklin, 65 N. H., 177; Florida Central Railway Co. _v._

Reynolds, 183 U. S., 476; _Per contra_, Brewer Brick Co. _v._ Brewer,

62 Maine, 62.

[123] Loan Association _v._ Topeka, 20 Wallace, 655 (1874); Kingman

_v._ City of Brockton, 153 Mass., 255 (1891); an admirable note citing

decisions as to a good tax may be found in L. B. Evans, _Leading Cases

on American Constitutional Law_ (Ed. 1916), p. 211.

[124] Art. i., 2: 3; 8: 1.

[125] Art. i., 8: 1. Kentucky Railroad Tax Cases, 115 U. S., 321

(1885); Kelly _v._ Pittsburgh, 104 U. S., 78 (1881); French _v._ Barber

Asphalt Paving Co., 181 U. S., 324 (1901); Veazie Bank _v._ Fenne, 8

Wallace, 533 (1869); Corporation Tax Cases, 220 U. S., 611 (1911).

[126] South Carolina _v._ United States, 199 U. S., 437 (1905). The

State conducted dispensatories and derived profit from them. It was

held liable for internal revenue. The exercise by the State, as a

dispenser, was held not to exempt it from the operation of the law.

[127] Art. i., viii., 3.

[128] Brig Wilson _v._ U. S., 1 Brockenbrough, 437 (1820).

[129] See decision of the Supreme Court sustaining the “Webb-Kenyon”

Law decommercializing (interstate) intoxicating liquors, Clark

Distilling Company _v._ W. Md. R. R. Co.; _Id._ _v._ Am. Ex. Co. and

State of W. Va. (January 8, 1917).

The power of Congress to deal with the hours of work and wages of

employees engaged in interstate commerce is examined in Wilson _v._

New and Ferris, Receivers, Mo. Ok., & G. Railway Co., March 19, 1917.

(Constitutionality of the “Adamson” law.)

[130] Art. vi., 2.

[131] Marbury _v._ Madison, 1 Cranch, 177 (1803).

[132] McCulloch _v._ Maryland, 4 Wheaton, 430 (1819).

[133] Brown _v._ Maryland, 12 Wheaton, 419 (1827).

[134] Gibbons _v._ Ogden, 9 Wheaton, 1 (1824).

[135] Pensacola Telegraph Co. _v._ Western Union Telegraph Co., 96

U. S., 1 (1877).

[136] So in Gibbon _v._ Ogden, _supra_.

[137] Henderson _v._ Mayor of New York, 92 U. S., 259 (1875); L. S.

& M. S. Railway Co. _v._ Ohio, 173 U. S. (1899); Railroad Co. _v._

Husen, 95 U. S., 465 (1877); Brimmer _v._ Rebman, 138 U. S., 78 (1891);

Morgan’s S. S. Co. _v._ Louisiana Board of Health, 118 U. S., 455

(1886); Leisy _v._ Hardin, 135 U. S., 100 (1890); Schellenberger _v._

Pennsylvania, 171 U. S., 1 (1898).

[138] The trend of these respective lines is disclosed by the decisions

in the cases cited in this Chapter.

[139] Pensacola Telegraph Co. _v._ Western Union Telegraph Co., 96

U. S., 1 (1877). The important word here is “jurisdiction.” “To

bring the transportation within the control of the State, as part of

its domestic commerce, the subject transported must be within the

entire voyage under the exclusive jurisdiction of the State.” Hanley

_v._ Kansas City Southern Railroad Co., 187 U. S., 617 (1903). The

Immigration Law (February 20, 1897, amended March 26, 1910), contains

the protective features the State would demand through exercise of its

police power. So too the Federal Meat Inspection Act (March 4, 1907).

[140] _The Daniel Ball_, 10 Wallace, 557 (1870).

[141] Act of Congress, March 2, 1893.

[142] “The insurance business does not constitute interstate commerce.”

Paul _v._ Virginia, 8 Wallace, 168 (1868). But the power to regulate

commerce doubtless includes legislation placing common carriers engaged

in interstate commerce under such federal control as to constitute

federal ownership of railroads, telegraph and telephone lines,

steamships, sailing vessels, etc., etc. Such ownership is illustrated

in France, Germany, Italy, Russia, and in other countries.

[143] The Sherman Anti-Trust Law of July 2, 1890, and decisions of the

Supreme Court concerning it, are illustrations.

[144] See the Hours of Service Act (March 4, 1907); the Adamson Act

(1916), and other acts indicative of the trend in the congressional

exercise of the power.

[145] United States _v._ E. C. Knight Co., 156 U. S., 1 (1895).

[146] Art. i., 8: 3.

[147] Coe _v._ Errol, 116 U. S., 525.

[148] Kidd _v._ Pearson, 128 U. S., 1.

[149] Cooley _v._ Board of Wardens of the Port of Philadelphia, 12

Howard, 299 (1851).

[150] Escanaba Company _v._ Chicago, 107 U. S., 678 (1882).

[151] Harman _v._ Chicago, 147 U. S., 396 (1893).

[152] Sands _v._ Manistee River Improvement Company, 123 U. S., 238.

[153] Brown _v._ Maryland, 12 Wheaton, 419 (1827).

[154] Brown _v._ Maryland, 12 Wheaton, 419 (1827).

[155] Walton _v._ Missouri, 91 U. S., 275 (1875).

[156] The evil effect of discriminating State legislation, and the

like, during the Articles of Confederation, are dwelt on by the Court

in Walton _v._ Missouri, _supra_.

[157] Walton _v._ Missouri, _supra_.

[158] Robbins _v._ Shelby County Taxing District, 120 U. S., 489 (1887).

[159] _Idem._

[160] Crutcher _v._ Kentucky, 141 U. S., 47 (1891).

[161] As by the act forbidding the transportation of lottery tickets

through the mails.

[162] Crutcher _v._ Kentucky, 141 U. S., 47 (1891).

[163] _Idem._ Cases decisive of the police powers of a State are

numerous. The principle involved may be deduced from Railroad Company

_v._ Huson, 95 U. S., 465 (1877); Brimmer _v._ Rebman, 138 U. S., 78

(1891); Morgan’s S. S. Company _v._ Louisiana Board of Health, 118

U. S., 455 (1886); Leisy _v._ Hardin, 135 U. S., 100 (1890); L. S. and

M. S. R. R. _v._ Ohio, 173 U. S., 285 (1899).

[164] Crutcher _v._ Kentucky, _supra_.

[165] Brown _v._ Houston, 114 U. S., 622 (1885), in which the cases are

cited.

[166] Telegraph Company _v._ Texas, 105 U. S., 460 (1881).

[167] Leisy _v._ Hardin, 135 U. S., 100 (1890). An act of the

Legislature, or a constitutional provision prohibiting the manufacture

or sale of intoxicating liquors within a State, is an example of

exercise of the police power by a State. See also Rhodes _v._ Iowa,

170 U. S., 412 (1898). Schellenberger _v._ Pennsylvania, 171 U. S., 1

(1898); and cases cited _supra_ touching State police power.

[168] The Passenger Cases, 7 Howard, 283.

[169] R. R. Co. _v._ Huson, 95 U. S., 465 (1877).

[170] Turner _v._ Maryland, 107 U. S., 38 (1882).

[171] Inman S. S. Co. _v._ Tinker, 94 U. S., 238 (1876).

[172] Packet Co. _v._ Keokuk, 95 U. S., 80 (1877).

[173] Transportation Co. _v._ Wheeling, 99 U. S., 273 (1878).

[174] Lottery Cases, 188 U. S., 321 (1903).

[175] _Id._

[176] 26 Statutes at Large, 209.

[177] Northern Securities Company _v._ United States, 193 U. S., 197

(1904).

[178] Beef-Trust case, Swift and Co. _v._ U. S., 196 U. S., 375.

[179] Danbury Hatters’ Case, Loewe _v._ Lawler, 208 U. S., 274; see

also Pullman Car Company, 64 Fed. Reporter, 724.

[180] _In re_ Neagle, 135 U. S., 1 (1889).

[181] _In re_ Debs, 158 U. S., 564 (1895).

[182] The Addystone Pipe & Steel Company _v._ United States, 175 U. S.,

211 (1899).

[183] The Shreveport Case, (Houston, East and West Texas Railway Co.

_v._ United States; Texas and Pacific Railway Co. _v._ United States)

234 U. S., 342 (1914).

NOTE.—Cases further illustrating prohibition of a business or activity

by operation of laws passed under the commerce clause: United States

_v._ Holliday, 3 Wallace, 407 (1866); Buttfield _v._ Stranahan, 192

U. S., 470 (1904); U. S. _v._ Del. & Hudson Ry., 213 U. S., 366 (1909);

Hope _v._ U. S., 227 U. S., 308 (1913).

Cases illustrating exercise of the power over commerce given by

the clause and exercising jurisdiction over commerce claimed to be

intrastate but forming as it were a link in the chain of interstate

commerce: Lord _v._ S. S. Co., 102 U. S., 541 (1880); Wilmington

Transportation Co. _v._ California Railroad Commission, 236 U. S., 151

(1915); Hanley _v._ Kansas City Southern Ry., 187 U. S., 617 (1903).

It will be well to read the dissenting opinions in any of these cases

as these usually emphasize the power of the State over commerce.

[184] Art. i., 10: 1.

[185] McCrackin _v._ Hayward, 2 Howard, 608 (1844).

[186] Woodruff _v._ Trapnall, 10 Howard, 190 (1850).

[187] Woodruff _v._ Trapnall, 10 Howard, 190 (1850).

[188] Murray _v._ Charleston, 96 U. S., 432 (1877).

[189] _Idem._

[190] Salt Company _v._ East Saginaw, 13 Wallace, 373 (1871).

[191] Fisk _v._ Jefferson Police Jury, 116, U. S., 131 (1885).

[192] Trustees of Dartmouth College _v._ Woodward, 4 Wheaton, 518

(1819).

[193] Case of the conjunction of Washington and Jefferson Colleges,

Pennsylvania College Cases, 13 Wallace, 190 (1871).

[194] Boyd _v._ Alabama, 94 U. S., 645.

[195] Beer Company _v._ Massachusetts, 97 U. S., 25 (1877).

[196] Douglas _v._ Kentucky, 168 U. S., 488 (1897).

[197] Douglas _v._ Kentucky, _supra_; New Orleans Gas Co. _v._

Louisiana Light Co., 115 U. S., 650 (1885).

[198] See the cases cited in New Orleans Gas Co. _v._ Louisiana,

_supra_.

[199] Georgia R. R. and Banking Co. _v._ Smith, 128 U. S., 174 (1888);

East Hartford _v._ Hartford Bridge Co., 10 Howard, 511 (1850). But a

judgment (judicial decision) is not a contract in the meaning of the

Constitution. Morley _v._ L. S. & M. S. R. R., 146 U. S., 162 (1892).

[200] McCrackin _v._ Hayward, 2 Howard, 608 (1844). All legal remedies

for the enforcement of a contract belonging to it at the time and place

when and where it is made are a part of its obligation. Any provision

of a State law or constitution impairing such remedies are void. Gunn

_v._ Barry, 15 Wallace, 610 (1872); Mitchell _v._ Clark, 110 U. S.

(1884). But the prohibition, in the Constitution, of any State to make

any law impairing the obligation of contracts “did not give to Congress

power to provide laws for the general enforcement of contracts; nor

power to invest the courts of the United States with jurisdiction

over contracts, so as to enable parties to sue upon them in those

courts. It did, however, give the power to provide remedies by which

the impairment of contracts by State legislation might be counteracted

and corrected: and this power was exercised.” Civil Rights Cases, 109

U. S., 3 (1883).

[201] Juilliard _v._ Greenman, 110 U. S., 421 (1884), and see note

_supra_, p. 92.

[202] Consult Mitchell _v._ Clark, 110 U. S., 633 (1884) from which the

quotation is taken.

[203] This raises the whole question of national sovereignty.

[204] Amendment V.; XIV.

[205] Missouri Pacific Ry. _v._ Nebraska, 164 U. S., 403 (1896).

[206] Pennoyer _v._ Neff, 95 U. S., 714 (1877); Arndt _v._ Griggs, 134

U. S., 316 (1890).

[207] Cunnius _v._ Reading School District, 198 U. S., 458 (1905),

sustaining a Pennsylvania statute that provided for administration upon

estates of persons presumed to be dead by reason of long absence from

the State. Mattingly _v._ District of Columbia, 97 U. S., 687 (1878);

that which a State Legislature may have dispensed with by a prior

statute it may dispense with by a subsequent one; an irregularity or

defect which might be made immaterial by prior law, the Legislature has

power to make immaterial by a subsequent law. Cooley, Constitutional

Limitations, 371.

[208] License Cases, 5 Howard, 588.

[209] Bartemeyer _v._ Iowa, 18 Wallace, 129.

[210] Foster _v._ Kansas, 112 U. S., 201.

[211] Mugler _v._ Kansas, 123 U. S., 623 (1887).

[212] _Idem._

[213] Amendment V.

[214] Pumpelly _v._ Green Bay Co., 13 Wallace, 166 (1871).

[215] _Idem._

[216] Preceding case and Central Bridge Corporation _v._ City of

Lowell, Gray (Mass.), 474 (1855).

[217] Pierce _v._ Drew, 136 Mass., 75 (1883). The case grew out of

plaintiff’s claim for damages because the town had granted a telegraph

company the right to erect its poles, wires, etc., along the highway

abutting plaintiff’s land. The highway being land in public use,

plaintiff claimed indirect or consequential damages because of the

erection of the poles, wires, etc., of the duly franchised telegraph

company. Plaintiff’s complaint was (_inter alia_) that said poles,

wires, etc., disfigured and depreciated his property. See also Bedford

_v._ U. S., 192 U. S., 217 (1904); the principle therein further

examined.

[218] Kohl _v._ United States, 91 U. S., 367 (1875).

[219] Kohl _v._ United States, 91 U. S., 367 (1875).

[220] Art. i., 2: 5; 3: 6.

[221] Compare Art. i., 6: 1, 2; 9: 8; Art. ii., 1: 1; Art., 5, 8;

“officer” in Art. ii., 2: 1,2; Art. ii., 4: 1; “offices” in Art.

iii., 1: 1; vi., 3. There is every reason that the framers of the

Constitution used words with profound discernment and discriminating

care.

[222] Art. ii., 2: 1.

[223] _Id._ i., 8: 11.

[224] _Id._ i., 7: 2.

[225] Constitution of Pennsylvania, 1873, iv., 16.

[226] Art. ii., 2: 2.

[227] _Id._ _The Federalist_, No. lxxv.

[228] Art. ii., 2: 2.

[229] _Id._, 2: 1.

[230] July (14?), 1864. Lincoln’s _Works_ (Century Ed.) i., 548.

[231] _In re_ Neagle, 135 U. S., 1 (1889).

[232] Spaulding _v._ Vilas, 161 U. S., 483; U. S. _v._ Windom, 137

U. S., 636; U. S. _v._ Blaine, 139 U. S., 306. Marbury _v._ Madison,

1 Cranch, 137; Kendall _v._ U. S., 12 Peters, 524; U. S. _v._ Black,

128 U. S., 40; Mississippi _v._ Johnson, 4 Wallace, 475; Georgia _v._

Stanton, 6 Wallace, 57.

[233] _Ex parte_ Garland, 4 Wallace, 333 (1886).

[234] Art. i., 3: 6.

[235] _Id._, 3: 4, 5.

[236] Notes of conversation, etc., C. E., Stevens, _Sources of the

Constitution of the United States_, 169.

[237] _Id._, 168.

[238] Mississippi _v._ Johnson, 4 Wallace, 475 (1866).

[239] _Idem._

[240] Mississippi _v._ Johnson, 4 Wallace, 475 (1866).

[241] Many cases; see State _ex rel._ _v._ Stone, 120 Missouri, 428

(1894), in which most of the cases are cited. But _mandamus_ will issue

to an appointee of the executive, a ministerial officer, to perform a

ministerial act. U. S. _ex rel._ Daly, 28 App. D. C., 552; 35 Wash. Law

Rep., 81; Garfield _v._ U. S. _ex rel._ Frost, 30 App. D. C., 165; 35

Wash. Law Rep., 771; Griffin _v._ U. S., _ex rel._ Le Cuyer, 30 App.

D. C., 291; 36 Wash. Law Rep., 103; Drake _v._ U. S., _ex rel._ Bates,

30 App. D. C., 312; 36 Wash. Law Rep., 140; U. S. _ex rel._ Newcomb

Motor Co., 30 App. D. C., 464; 36 Wash. Law Rep., 150; also 36 Wash.

Law Rep., 681. Also U. S. _ex rel._ _v._ Black, 128 U. S., 40 (1888).

[242] United States _ex rel._ _v._ Black, 128 U. S., 40; and see the

cases cited in preceding note.

[243] Art. iii., 1: 1.

[244] For the history of this amendment see the author’s

_Constitutional History of the United States_, ii., 264–290.

[245] See Iredell’s dissenting opinion in Chisholm _v._ Georgia, 2

Dallas 419 (1793).

[246] _The Federalist_, No. xvi.

[247] Art. iii., 2: 1; Amendment XI.

[248] No. lxxx.

[249] _In re_ Neagle, 135 U.S., 1 (1889).

[250] _The Federalist_, No. lxxx.

[251] _Id._ For example, were the Vice-President to preside over the

Senate sitting as a Court of Impeachment.

[252] _The Federalist_, _id._

[253] _The Federalist_, _id._

[254] Robertson _v._ Cease, 97 U. S., 646.

[255] Art. iii., 2: 2.

[256] Marbury _v._ Madison, 1 Cranch, 174.

[257] Cohens _v._ Virginia, 6 Wheaton, 414 (1821).

[258] _Idem._

[259] So Congress has denied such jurisdiction to State courts,—Revised

Statutes, U. S., Sec. 687.

[260] Davis _v._ Packard, 7 Peters, 276; Börs _v._ Preston, in U. S.,

252 (1884).

[261] Cohens _v._ Virginia, _supra_.

[262] This power has been discussed in the preceding Chapters on

Sovereignty, Legislation, Commerce, Taxation, Contracts, etc. See index.

[263] Bank of Commerce _v._ New York City, 2 Black, 620 (1862).

[264] Marbury _v._ Madison, 1 Cranch, 137 (1803).

[265] The relation of the United States to the State judiciary; the

subject of concurrent (State and federal) judicial jurisdiction, is

examined by Hamilton in _The Federalist_, Nos. lxxviii-lxxxiii. See

also Martin _v._ Hunter’s Lessee, 1 Wheaton, 304 (1816).

[266] Hepburn _v._ Ellzey, 2 Cranch, 445 (1805).

[267] Art. iii.

[268] United States _v._ Freight Association, 166 U. S., 290, citing

many cases.

[269] American Insurance Company _v._ Cantor, 1 Peters, 542.

[270] Luther _v._ Borden, 7 Howard, 1 (1848).

[271] The whole subject of the American judiciary is largely technical

and can be known only through intimate knowledge of the _Reports_,

of the _Statutes at Large_, and familiarity with _practice_. In the

present chapter the _essentials of the law_ of judicial procedure are

the immediate subject.

[272] Marbury, _v._ Madison, 1 Cranch, 163.

[273] Marbury _v._ Madison, 1 Cranch, 176–180.

[274] All of Marshall’s decisions rest on the principle, thus set

forth, and it remains fundamental in America, applying alike in the

States and in the United States.

[275] The principle is examined in State _ex rel._ _v._ Stone, 120

Missouri, 428 (1894). Also in Luther _v._ Borden, 7 Howard, 1 (1848).

[276] See Constitution of Massachusetts, Judiciary, III.

[277] _Political Science and Constitutional Law_, J. W. Burgess, ii.,

365; “I do not hesitate to call the governmental system of the United

States the aristocracy of the robe; and I do not hesitate to pronounce

this the truest aristocracy for the purposes of government which the

world has yet produced.” _Id._

[278] United States _v._ Lee, 106 U. S., 196 (1882).

[279] Case of Supervisors of Elections, 114 Mass., 247 (1873); the

quotation (in the decision) is from the Constitution of Massachusetts,

1780, Part I, xxx. “The Government of the United States has been

emphatically termed a government of laws, and not of men.” Marbury _v._

Madison, 1 Cranch, 163.

[280] State _ex rel._ _v._ Simons, 32 Minn., 540 (1884). _Ex parte_

Griffiths, 118 Indiana, 83 (1889).

[281] _Idem._

[282] Harwood _v._ Wentforth, 162 U. S., 547 (1896).

[283] Osborn _v._ Bank of the United States, 9 Wheaton, 738 (1824).

[284] Osborn _v._ Bank of the United States, 9 Wheaton, 738 (1824).

[285] Many cases; see Southern Pacific Railroad Co. _v._ California,

118 U. S., 109 (1866); Beck _v._ Perkins, 139 U. S., 628 (1891).

[286] Börs _v._ Preston, 111 U. S., 252. (1884).

[287] The steamboat _Magnolia_, 20 Howard, 296 (1857).

[288] _Ex parte_ Siebold, 100 U. S., 37 (1879). Thus canals are

highways of commerce and subject to “regulation” by Congress. The

Robert W. Parsons, 191 U. S., 17 (1903); _Ex parte_ Boyer, 109 U. S.,

629 (1884).

[289] Stanley _v._ Schwalby, 162 U. S., 255 (1896), where the cases are

cited.

[290] Cohens _v._ Virginia, 6 Wheaton, 414 (1821).

[291] United States _v._ Texas, 143 U. S., 621 (1892). The doctrine

also in South Dakota _v._ North Dakota, 192 U. S., 286 (1904).

[292] Ames _v._ Kansas, 111 U. S., 449 (1884); the “party” may be a

State (including its corporate subdivisions), or a natural person (or

persons), or an artificial person (a corporation).

[293] Wisconsin _v._ Pelican Insurance Co., 127 U. S., 265 (1888).

[294] Hans _v._ Louisiana, 134 U. S., 1 (1890). The history of the

Eleventh Amendment includes the entire record as to suits against

States. The principles involved may be found as discussed by Hamilton

in _The Federalist_, No. lxxxi; by Marshall, Madison, Mason, and

Henry, in the Virginia Ratifying Convention, 3 Elliott’s Debates; in

Mr. Justice Iredell’s dissenting opinion in Chisholm _v._ Georgia, 2

Dallas, 419; and a special history of the Amendment in the author’s

_Constitutional History of the United States_, ii., 264–293. The

Eleventh Amendment overruled the decision in the Chisholm case. As

to suits against a State by its own citizens see Railroad Co. _v._

Tennessee, 101 U. S., 337 (1879). The principle here is that the

sovereign may assent to being sued by its own citizens,—an assent

declared by the State constitution, but available by the citizen only

according to acts of the Legislature. The privilege (if it exists)

is statutory. But suit against an officer, or agent of the State,—or

of the United States, is not barred if that officer exercises a

ministerial function; such suit is not a suit against the sovereign

(United States, or State). See U. S. _v._ Lee, 106 U. S., 196 (1882);

Cunningham _v._ Macon & Brunswick R. R. Co., 109 U. S., 446 (1883).

[295] Judiciary Act, 1789, 1888 (and so amended.)

[296] The Ohio and Mississippi R. R. Co. _v._ Wheeler, 1 Black, 286

(1861). Hooe _v._ Jamieson, 166 U. S., 395 (1897).

[297] Martin _v._ Hunter’s Lessee, 1 Wheaton, 304 (1816); opinion by

Mr. Justice Story; this case remains the leading case on the appellate

jurisdiction of federal courts. The appellate jurisdiction of the

courts is discussed by Marshall in Marbury _v._ Madison: “The essential

criterion of appellate jurisdiction is that it revises and corrects the

proceedings in a cause already instituted, and does not create that

cause,” _Ex parte_, Watkins, 7 Peters, 568 (1833).

[298] Gaines _v._ Fuentes, 92 U. S., 10 (1875). Security Mutual Life

Insurance Company _v._ Prewitt, 202 U. S., 246 (1906).

[299] Whitten _v._ Tomlinson, 160 U. S., 231 (1895). But as to

conflicting jurisdiction of State and federal courts see Riggs _v._

Johnson County, 6 Wallace, 166 (1867).

[300] Green _v._ Neal’s Lessee, 6 Peters, 291 (1832).

[301] _Idem._ The question is examined in Pana _v._ Bowler, 107 U. S.,

529 (1882). Gelpoke _v._ City of Dubuque, 1 Wallace, 175 (1863).

[302] Burgess _v._ Seligman, 107 U. S., 20 (1883). Bucher _v._ Cheshire

R. R. Co., 125 U. S., 555 (1888).

[303] Smith _v._ Alabama, 124 U. S., 465 (1888). Western Union

Telegraph Company _v._ Call Publishing Company, 181 U. S., 92 (1901).

[304] Art. i., 8: 17; 9: 6, 8; 10: 1, 2, 3; Art. iii.,2: 1, 2, 3; Art.

iv., 1: 1; 2: 1, 2, 3; 3: 1, 2; 4: 1; Art. v., Art. vi., 2, 3; Art.

vii., 1; Amendments VI., X., XI., XIII., XIV., XV., XVI., XVII.

[305] Thompson _v._ Whitman, 18 Wallace, 457 (1873).

[306] McElmayle _v._ Cohen, 13 Peters, 312. Story, _Commentaries on the

Constitution_, 1313.

[307] Williamson _v._ Berry, 8 Howard, 540.

[308] Thompson _v._ Whitman, 18 Wallace, 457.

[309] Hanley _v._ Donaghue, 116 U. S., 1 (1885).

[310] Hanley _v._ Donaghue, 116 U. S., 1 (1885).

[311] _Idem._

[312] Talbot _v._ Seeman, 1 Cranch, 38 (1801). The principle here

declared is not to be applied strictly in extradition cases, whether

between the several States or between the United States and another

nation.

[313] Buckner _v._ Finley, 2 Peters, 590 (1829).

[314] Buckner _v._ Finley, 2 Peters, 590 (1829).

[315] Art. iii., 2: 1.

[316] Paul _v._ Virginia, 8 Wallace, 168 (1868).

[317] _Idem._

[318] Ward _v._ Maryland, 12 Wallace, 418.

[319] Slaughter House Cases, 16 Wallace, 77 (1872). Blake _v._ McClung,

172 U. S., 239 (1898).

[320] Blake _v._ McClung, _supra_.

[321] _Ex parte_ Reggel, 114 U. S., 642 (1885). Pennoyer _v._ Neff, 95

U. S., 714 (1877).

[322] Art. iv., 2: 2. Revised Statutes, §§ 5278, 5279.

[323] _Ex parte_ Reggel, _supra_.

[324] Lascelles _v._ Georgia, 148 U. S., 537 (1893).

[325] Art. i., 10: 1.

[326] Lascelles _v._ Georgia, _supra_. In international law the right

of extradition does not include fugitives for _political_ offenses.

This exemption is an incident of sovereignty.

[327] Consult United States _v._ Rauscher, 119 U. S., 407.

[328] Lascelles _v._ Georgia, _supra_.

[329] Luther _v._ Borden, 7 Howard, 1 (1848).

[330] _Idem._

[331] Luther _v._ Borden, 7 Howard, 1 (1848).

[332] Art. iv., 4: 1.

[333] Minor _v._ Happersett, 21 Wallace, 162 (1874).

[334] _Idem._

[335] Texas _v._ White, 7 Wallace, 700 (1868).

[336] There are many cases expository of this principle: McCulloch

_v._ Maryland, 4 Wheaton, 316; Barron _v._ Baltimore, 7 Peters, 243;

Slaughter House Cases, 16 Wallace, 36; United States _v._ Cruikshank,

92 U. S., 542; _Ex parte_ Siebold, 100 U. S., 371; Fong Yue Ting _v._

U. S., 149 U. S., 698; Legal Tender Cases, 12 Wallace, 457.

[337] Art. iv., 3: 1.

[338] Art. iii.; Art. iv. § 10; Amendments VI., X., XI., XIII., XIV.,

XV., XVII., and doubtless also in the matter of federal elections

(election of members of the House of Representatives, and of United

States Senators) as by Wiley _v._ Sinkler, 179 U. S., 58; _Ex parte_

Yarbrough, 110 U. S., 651, and in all other Federal relations.

[339] Sands _v._ Manistee Improvement Company, 123 U. S., 288 (1887).

[340] If admitted by Proclamation of the President (and so Congress may

provide) conformity to conditions imposed is duly announced by him. The

enabling acts since 1789 vary in content. They are reprinted in _The

Federal and State Constitutions, Colonial Charters, and other Organic

Laws of the States, Territories and Colonies Forming the United States

of America_. 7 vols. Washington, Government Printing Office 1909.

[341] The provision of the Ohio constitution of 1912 limiting the

right to vote to “white male citizens of the United States” (Ohio,

Art. v., § 1) citizens with the Fifteenth Amendment of the national

Constitution. The power of the Judiciary of the United States to

declare constitutions and laws that are repugnant to the Constitution

of the United States unconstitutional, null, and void is discussed in

the preceding chapter.

[342] Art. iv., 3: 2.

[343] American Insurance Company _v._ Canter, 1 Peters, 551 (1828).

National Bank _v._ County of Yankton, 101 U. S., 129 (1879).

[344] National Bank _v._ County of Yankton, _supra_. But all rights

commonly known as _fundamental_ do not work as limitations of the

power of Congress to govern Territories or “outlying possessions”; see

Downes _v._ Bidwell, 182 U. S., 244 (1901). Until this decision these

_fundamental_ rights were construed as _limitations_ of the power of

Congress in its government of Territories; see Callan _v._ Wilson, 127

U. S., 540 (1888). Thompson _v._ Utah, 170 U. S., 343 (1898).

[345] Downes _v._ Bidwell, _supra_, and supporting cases.

[346] Barron _v._ Baltimore, 7 Peters, 243 (1833).

[347] Downes _v._ Bidwell, _supra_.

[348] _Idem._ In Brown _v._ Walker, 161 U. S., 591 (1896), (_i. e._,

five years before the decision in Downes _v._ Bidwell), the Court

declared: “The object of the first eight amendments to the Constitution

was to incorporate into the fundamental law of the land certain

principles of natural justice which had become permanently fixed in the

jurisprudence of the mother country, etc.”

[349] The dissenting opinions in Downes _v._ Bidwell should be read;

powerful as they are, they are _not_ the opinion of the Court and _do

not declare what the law is_.

[350] Cohens _v._ Virginia, 6 Wheaton, 414 (1821).

[351] The power of Congress over territory incorporated into the

United States,—that is, over territory over which the Constitution has

been extended by Congress is limited by the Constitution: Thompson

_v._ Utah, 170 U. S., 343 (1898). Rasmussen _v._ United States, 197

U. S., 516 (1905); but over territory _not so incorporated_, see

Hawaii _v._ Mankichi, 190 U. S., 197 (1903); Dorr _v._ U. S., 195

U. S., 138 (1904). The decisions support the doctrine that once the

Constitution has been extended over territory, it cannot be withdrawn

(Downes _v._ Bidwell) and consequently, all the limitations which by

the Constitution affect Congress operate as limitations of its power

over the territory, and therefore operate as fundamental rights and

privileges of the inhabitants of such territory.

[352] So throughout _The Federalist_, and notably in Nos. xliv., xlv.,

li.

[353] But note the Sixteenth Amendment.

[354] First Inaugural. _Works_ (Century Ed.), ii., 7.

[355] Art. ii., 1: 2; Amendment XII.

[356] In 1787 distrust of the people, among the framers of the

Constitution, explains the constitutional provision. James Wilson urged

election of the President by popular vote. South Carolina in 1860 was

the last State to appoint presidential electors by its Legislature.

There is widespread belief in America now that the President should be

elected by direct popular vote, as are Congressmen and United States

Senators. At present the “electoral vote” is 531; the person receiving

the majority of these 531 votes is President of the United States.

By American laws there are upwards of 20,000,000 voters; by American

constitutional law, the person receiving 266 “electoral” votes is

President.

[357] Art. ii., 2: 1.

[358] _Id._ 3.

[359] Cincinnati, Wilmington, etc., R. R. Co. _v._ Commissioners, 1

Ohio St., 88; and see a full discussion of the issue in Field _v._

Clark, 143 U. S., 649 (1892).

Thus technically, the veto power is not a legislative but an executive

power, though it is common to speak of the participation of the

executive in legislation.

[360] Art. i., 2: 5; 3: 6. The subject is discussed in Chapters VII and

VIII.

[361] Art. i., 8: 1.

[362] _Id._, 8: 12. In practice appropriations are for one year; if the

purpose for which the appropriation was made is not effected within the

year, the appropriation ceases to be available, unless to the contrary

as declared in the law; but an unexpended appropriation may be made

available (sometimes) by resolution of Congress, or even of the branch

of Congress specially concerned.

[363] Art. i., 8: 16.

[364] _Id._, 9: 3. The limitation as to prohibition of the slave trade

was temporary. _Id._, 9: 1.

[365] _Id._, 9: 5.

[366] _Id._, 9: 6.

[367] Art. i., 9: 8.

[368] _Id._, 5: 4.

[369] _Id._, 7: 1.

[370] _Id._, 6: 2. This is a limitation of the freedom of choice

of certain individuals rather than a limitation of Congress as a

legislative body; but what is forbidden to a member of Congress cannot

be made lawful for him by act of Congress; thus the limitation may

be one of legislation. The provision (Art. i., 9: 2) concerning the

suspension of the writ of _habeas corpus_ is not a limitation of the

power of Congress, for Congress is the judge whether public safety

requires the suspension of the writ.

[371] Art. iii., 3: 1, 2.

[372] Art. iii., 3: 2; _Id._ i., 9: 3.

[373] _Id._ iv., 3: 1.

[374] _Id._, 3: 2.

[375] The first ten Amendments were demanded in 1787–8 as specific

limitations of legislative power of the United States, and as a

protection of fundamental, original rights of the people.

[376] The history of these Amendments in the author’s _Constitutional

History of the United States_, ii., 199–263.

[377] First Amendment.

[378] Amendments II., III., IV., V.

[379] See the Ninth Amendment.

[380] It will be noticed that this Amendment is not a limitation of the

States; it applies to the United States.

[381] This is brought out by Marshall in Marbury _v._ Madison, 1

Cranch, 137,—the corner-stone of many later decisions.

[382] The limitations of the States by the Constitution of the United

States have already been discussed in earlier chapters. Examination

of present State constitutions will disclose existing limitations

prescribed by the sovereignty, the people of the State.

[383] Art. i., 4: 1. The right to vote for members of Congress has its

foundation in the Constitution of the United States, not in that of

any State: Wiley _v._ Sinkler, 179 U. S., 58; _Ex parte_ Yarbrough,

110 U. S., 651. This means a limitation of State powers,—as some might

say; in strictness, it means a definition of federal powers; the

jurisdiction of a State cannot exclude the jurisdiction of the United

States.

[384] _Id._, 8: 17.

[385] No. lxii. (The authorship, strictly speaking, is uncertain, being

assigned “to Hamilton _or_ Madison.”)

[386] Art. i., 10: 1.

[387] Art. i., 10: 2, 3.

[388] _Id._ ii., 2: 1.

[389] _Id._ iii., 2: 2.

[390] Amendment XI.

[391] Amendment XIII.

[392] Amendment XIV.

[393] _Id._

[394] Art. i., 2: 3.

[395] _Id._ v.

[396] _Id._ i., 2: 4. Amendment XVII., 2.

[397] Art. iv., 1: 2.

[398] Amendment XII.

[399] Art. ii., 2: 2.

[400] _Id._ iv., 2: 1.

[401] _Id._, 4. But the Governor cannot so apply if the Legislature is

in session. The reason here is that the people of the State have fully

empowered their representatives in the Legislature “to see that the

Commonwealth suffers no harm.”

[402] Art. v.

[403] The Sixteenth Amendment (income tax) bears most heavily on States

having large cities and a manufacturing population. It is possible that

States which would be but slightly affected by a proposed amendment,

might favor and ratify it; to avoid this possible discrimination, the

suggestion has been made that in such a case the power of a State

to ratify or to oppose ratification should be in proportion to its

interests as affected by the proposed amendment. To this suggestion

answer has been made that the Constitution is national, not local, in

purpose and operation.

[404] Art. vi., 2, 3.

[405] Tenth Amendment.

[406] Ninth Amendment.

[407] The first quotation is from Downes _v._ Bidwell, 182 U. S., 244

(1901); the second, from Gibbons _v._ Ogden, 9 Wheaton, 235 (1824),

decision by Marshall. The application of the principle laid down

by Chief Justice Marshall in 1824 and elaborated, at times, by the

Supreme Court,—as in 1901,—was discussed by the eminent jurist, Thomas

M. Cooley, in a brief address to the North Dakota Constitutional

Convention, July 17, 1889. At that time he was Chairman of the

Interstate Commerce Commission. “Don’t, in your constitution-making,

legislate too much. In your constitution you are tying the hands

of the people. Don’t do that to any such extent as to prevent the

Legislature, hereafter, from meeting all evils that may be within the

reach of proper legislation. Leave something for them. _Take care to

put proper restrictions upon them_, but at the same time leave what

properly belongs to the field of legislation to the Legislature of

the future. _You have got to trust somebody in the future and it is

right and proper that each department of government should be trusted

to perform its legitimate functions._” Proceedings and Debates of the

First Constitutional Convention of North Dakota, Assembled in the City

of Bismarck, July 4 to August 17, 1889, p. 67. (Italization in text,

not in original.)

[408] Thirty-three States have an elective judiciary. In Maine, New

Hampshire, Massachusetts, Connecticut, Delaware, Mississippi, and New

Jersey, the Governor nominates and the Senate confirms judges; in Rhode

Island, Vermont, South Carolina, and Virginia, the Legislature elects

the judges; in Florida, the Governor appoints judges of the Superior

Courts and judges of the Supreme Court are elected by the people.

[409] Strictly executive functions are not within the jurisdiction of

courts of law. See the discussion in Chapter VII.

[410] Marbury _v._ Madison, 1 Cranch, 137 (1803).

[411] Art. vi., 2, 3.

[412] Chicago, etc., Ry. Co. _v._ Wellman, 143 U. S., 339 (1892); Frees

_v._ Ford, 6 New York, 176 (1852); Commonwealth _v._ McCloskey, 2 Rawle

(Pa.) 374; Wellington, Petitioner, 16 Pickering (Mass.), 96.

[413] McCulloch _v._ Maryland, 4 Wheaton, 421 (1819).

[414] _Idem._, 423.

[415] No. lxxxiv.

[416] _Pennsylvania and the Federal Constitution_, McMaster and Stone,

254. Both Hamilton and Wilson were overruled by the public demand for a

Bill of Rights, and the first ten Amendments were speedily added to the

Constitution.

[417] Ogden _v._ Saunders, 12 Wheaton, 332 (1827); Martin _v._ Hunter’s

Lessee, 1 Wheaton, 304 (1816); United States _v._ Aaron Burr, Cotton’s

_Constitutional Opinions of John Marshall_, 1.100; Sturgis _v._

Crowningshield, 4 Wheaton, 122 (1819); Cohens _v._ Virginia, 6 Wheaton,

264 (1821); Cooley, _Constitutional Limitations_, 6th Edition, 204.

[418] Norton _v._ Shelby County, 118 U. S., 425.

[419] The relation of the judiciary to ministerial officers has already

been examined; see Chapters VII and VIII. But see in this connection,

the Secretary _v._ McGarrahan, 9 Wallace, 298; United States _v._

Black, 128 U. S., 40; United States _v._ Windom, 137 U. S., 636; United

States _v._ Blaine, 139 U. S., 306; State _ex rel._ _v._ Stone, 120

Missouri, 428.

[420] Pennsylvania, 1873, Art. iv. §16. This provision does not empower

the Governor to cut down an item, but in practice, it is so construed.

[421] As sovereignty is a unit, any examination of particular

aspects of it must be but a partial examination of its operations.

The Constitution of the United States is a unit, in so far as the

sovereignty,—the people of the United States,—have made it the

expression of their plan of government. It follows that close

examination of any department or feature of the Constitution as a plan

of government discloses that feature in relation with other features;

the Constitution is an expression of a mass of relations. Thus it is

that a decision of the Supreme Court may relate to several matters,

seemingly without relation, but necessarily co-related. The present

chapter on _The Law of Limitations_ discusses executive, legislative,

and judiciary and the principles of government by which it acts. _The

entire subject of American constitutional law must be viewed as a

whole._ See Pollock _v._ Farmers’ Loan and Trust Co., 158 U. S., 601

(1895); Field _v._ Clark, 143 U. S., 649 (1892). Also _The Federalist_,

Nos. xliv.-lvi.

[422] Art. ii., 2: 2.

[423] American Insurance Company _v._ Canter, 1 Peters, 511.

[424] Amendments IX., X.

[425] Art. vi., 3. The ratifying conventions, 1788–9, formulated in the

aggregate some two hundred amendments in the nature of provisions in

a Bill of Rights. These, reduced to twelve, were presented by Madison

(May 25, 1789) in the House of Representatives and were duly submitted

to the States for ratification. Ten were ratified (1790).

[426] Reynolds _v._ United States, 98 U. S., 145 (1878).

[427] Davis _v._ Beason, 133 U. S., 333.

[428] Cooley, _Principles of Constitutional Law_, 3d Edition, 226. As

to “Readings from the Bible” in public schools, _see_ Pfeiffer _v._

Board of Education, 77 N. W. Reporter, 250 (1898); State _ex rel._

Weiss _v._ District Board, 76 Wisconsin, 177 (1890).

[429] People _v._ Ruggles, 8 Johns (N. Y.), 290. The exemption from

taxation of property belonging to religious bodies (corporations) is

not because of any fundamental right of such bodies to exemption, but

because of the will of the legislature. It is a matter of policy.

[430] The winning of these and other fundamental rights is largely the

subject of English constitutional history.

[431] So expressed in many State constitutions, as Pennsylvania, 1873,

i., 7.

[432] A right fully established at the trial of the Seven Bishops, 1688.

[433] United States _v._ Cruikshank, 92 U. S., 542 (1875).

[434] West _v._ Cabell, 153 U. S., 78; Weeks _v._ U. S., 232 U. S.,

383; _Ex parte_ Milligan, 4 Wallace, 2; U. S. _v._ Louisville &

Nashville R.R. Co., 236 U. S., 318; U. S. _v._ Boyd, 116 U. S., 616

(the leading case), and Cotting _v._ Kansas City Stock Yards Co., 183

U. S., 79 (1901).

[435] Paul _v._ Virginia, 8 Wallace, 168 (1808); Blake _v._ McClung,

172 U. S., 239 (1898); Lockner _v._ New York, 198 U. S., 45 (1905).

[436] The rights of the person, and his or her rights of property are

the essential subject of the Fourth, Fifth, Sixth, Seventh, and Eighth

Amendments. Similar provisions are included in the Bills of Rights in

the State constitutions.

[437] Corfield _v._ Coryell, 4 Washington C. C., 371; Slaughter House

Cases 16 Wallace, 36.

[438] This act of sovereignty is so rare as almost to be unknown. In

America the act takes the form of an amendment to the Constitution.

[439] The forty-eight States have had, in the aggregate, some one

hundred and twenty-five constitutions, and to these have been added

some three hundred amendments (1776–1917). The federal Constitution has

been amended seventeen times (1787–1913).

[440] Downes _v._ Bidwell, 182 U. S., 244 (1901).

[441] Pfeiffer _v._ Board of Education of the City of Detroit, 77 N. W.

Rep., 250 (1898).

[442] Reynolds _v._ United States, 89 U. S., 145 (1878).

[443] Boyd _v._ United States, 116 U. S., 616 (1886). (Important

historical data given in this case.)

[444] Robertson _v._ Baldwin, 165 U. S., 275 (1897).

[445] Cooley, _Constitutional Limitations_, 353; _Ex parte_ Wall,

107 U. S., 265 (1883). Murray’s Lessee _v._ The Hoboken Land and

Improvement Company, 18 Howard, 272 (1855), considered the leading case.

[446] Hurtado _v._ California, 110 U. S., 516 (1884).

[447] Yick Wo _v._ Hopkins (San Francisco Laundry Cases), 118 U. S.,

356 (1886).

[448] Pembina Mining Company _v._ Pennsylvania, 125 U. S., 181 (1888).

Barbier _v._ Connolly, 113 U. S., 27 (1885). Holden _v._ Hardy, 169

U. S., 366 (1898). But an act making it a criminal offense to employ

a female in any clothing factory more than forty-eight hours in any

one week violates the Fourteenth Amendment as violating the right of

contract and being class legislation: Ritchie _v._ State, 155 Illinois,

98 (1895).

[449] Dent _v._ West Virginia, 129 U. S., 114 (1889). And cases cited.

[450] Barbier _v._ Connolly, _supra_. Mugler _v._ Kansas, 123 U. S.,

623 (1887). The power to regulate, that is, the jurisdiction of the

police power of the State, as decided in Munn _v._ Illinois, 94 U. S.,

113 (1876), includes the power “to provide a maximum charge for the

storage and handling of grain” in a warehouse privately owned. This

is settled law, but careful reading should be made of the dissenting

opinions in this case: Budd _v._ New York, 143 U. S., 517 (1892),

sustaining Munn _v._ Illinois, with strong dissenting opinions; Spring

Valley Water Works _v._ Schottler, 110 U. S., 347 (1884) sustaining

Munn _v._ Illinois, with strong dissenting opinions. The economic

question here is whether the State can fix prices, wages, compensation,

hours of labor, etc. In this connection examine Lockner _v._ New York,

198 U. S., 45 (1905), sustaining a law of New York State making it

a penal offense for any employer to require and permit any employee

to work for him more than sixty hours in any one week. The law was

sustained as a constitutional exercise by the State of its police

power; but see dissenting opinions. The _per contra_ was “the right of

the individual to liberty of person and freedom of contract.”

[451] Capital Traction Company _v._ Hof, 174 U. S., 1 (1899). Many

cases cited and the history of trial by jury given.

[452] Mr. Justice Matthews in Yick Wo _v._ Hopkins, 118 U. S., 356

(1886).

[453] Amendment XIV., July 28, 1868. It will be noticed here that the

word “territory” is not used.

[454] Slaughter House Cases, 16 Wallace, 36 (1872).

[455] Amendment XIV.

[456] Art. iv., 2: 1.

[457] See p. 150.

[458] Canfield _v._ Coryell, 4 Washington, C. C., 371, 380; Paul _v._

Virginia, 8 Wallace, 180, and see pp. 191–211 of the present volume.

[459] Slaughter House Cases, _supra_.

[460] Crandall _v._ Nevada, 6 Wallace, 36 (1867).

[461] Slaughter House Cases, _supra_. (Some additional rights are

secured citizens of the United States by Amendment XIV., §2; and by

Amendments XIII. and XV.)

[462] Minor _v._ Happersett, 21 Wallace, 162 (1874).

[463] Art. iv., 4.

[464] Minor _v._ Happersett, _supra_. (But see _Ex parte_ Yarbrough,

110 U. S., 651.)

[465] These qualifications, in the aggregate, have been of age, sex,

residence, religion, property, race, and tax-paying. See the provisions

in the State constitutions in _Charters and Constitutions_, 7 vols.,

U. S. Government Printing Office, 1909; and a detailed account of

these early qualifications (1776–1850) in the author’s _Constitutional

History of the American People_, i., ch. iii.

[466] Art. i., 2: 1; Amendment XVII.

[467] _Ex parte_ Yarbrough, 110 U. S., 651, 653; Wiley _v._ Sinkler,

179 U. S., 58 (1900).

[468] United States _v._ Cruikshank, 92 U. S., 542 (1875).

[469] _Idem._

[470] Civil Rights Cases, 109 U. S., 3 (1883).

[471] _Idem._

[472] _Ex parte_, Siebold, 100 U. S., 371 (1879).

[473] Strauder _v._ West Virginia, 100 U. S., 303 (1879).

[474] Civil Rights Cases, 109 U. S., 3 (1883).

[475] 14 Statutes at Large, 27, Ch. 31; Enforcement Act, May 31, 1870,

16 Statutes at Large, 140, Ch. 114.

[476] Civil Rights Cases, _supra_.

[477] That is, violating Amendments VI. and XIV.

[478] Hurtado _v._ California, 110 U. S., 516 (1884).

[479] “The trial by jury in civil cases guaranteed by the Seventh

Amendment (Walker _v._ Sauvinet, 92 U. S., 90) and the right to bear

arms guaranteed by the Second Amendment (Presser _v._ Illinois,

116 U. S., 252) have been distinctly held not to be privileges and

immunities of citizens of the United States against abridgment by the

States, and in effect the same decision was made in respect of the

guarantee against prosecution, except by indictment of a grand jury in

the Fifth Amendment (Hurtado _v._ California, 110 U. S., 516) and with

respect to the right to be confronted with witnesses, contained in the

Sixth Amendment (West _v._ Louisiana, 194 U. S., 258). In Maxwell _v._

Dow, 176 U. S., 606, when the plaintiff in error had been convicted

in a State court of a felony upon an information, and by a jury of

eight persons, it was held that the indictment made indispensable by

the Fifth Amendment, and the trial by jury guaranteed by the Sixth

Amendment, were not privileges and immunities of citizens of the United

States, as those words were used in the Fourteenth Amendment....

We conclude, therefore, that the exemption from compulsory

self-incrimination (‘see Amendment V.’) is not a privilege or immunity

of national citizenship guaranteed by this clause (‘the first clause’)

of the Fourteenth Amendment against abridgment by the States.” Twining

_v._ State of New Jersey, 211 U. S., 78 (1908).

[480] United States _v._ Wong Kim Ark, 169 U. S., 649 (1898).

[481] Art. i., 8: 4.

[482] United States _v._ Villato, 2 Dallas, 373; Nishimura Ekin _v._

U. S., 142 U. S., 651; Luria _v._ U. S., 231 U. S., 9.

[483] _Ex parte_ Griffiths, 118 Indiana, 83 (1889), citing many cases,

(_inter alia_) Hayburn’s Case, 2 Dallas, 409, n.; United States _v._

Ferrera, 13 Howard, 40, n.; United States _ex rel._ _v._ Duell, 172

U. S., 576 (1898), also to be consulted.

[484] United States _v._ Rodgers, 150 U. S., 249 (1893).

[485] Guinn and Beal _v._ United States, 238 U. S., 347 (1915).

[486] _Idem._

[487] _Idem._ and citing _Ex parte_ Yarbrough 110 U. S., 651 (already

considered in the present Chapter) and Neal _v._ Delaware, 103 U. S.,

370. The decisions of the Supreme Court do not conflict with a State

constitution that requires, as a qualification for voting, a literacy

test, or a religious test, or a property test, or indeed any test which

is not a discrimination on account of race color or previous condition

of servitude.

[488] Calder _v._ Bull, 3 Dallas, 386 (1798); Kring _v._ Missouri, 107

U. S., 221 (1882); Thompson _v._ Utah, 170 U. S., 343 (1898). All the

State constitutions forbid _ex post facto_ laws.

The right secured to the citizen by the constitutional inhibition of

_ex post facto_ legislation forms part of his, or her, privileges and

immunities; for though the inhibition cannot be said to be derived from

the common law,—and may be said to be essentially statutory, it has

become recognized as a fundamental right and of rank with any other

fundamental right.

[489] Hollinger _v._ Davis, 146 U. S., 314 (1892).

[490] _Idem._

[491] Boyd _v._ United States, 116 U. S., 616 (1886). The right covers

“persons, houses, papers, and effects.” Art. iv.

[492] Harris _v._ People, 128 Illinois, 585 (1889).

[493] Art. v., Act of February 11, 1893, Statutes at Large, 443; Brown

_v._ Walker, 161 U. S., 591 (1896).

[494] Amendment VI. Mattox _v._ United States, 156 U. S., 237 (1895).

[495] _Idem._

[496] In the original the clauses are not numbered, nor is there any

title to the document. It begins, “WE THE PEOPLE.”

[497] See Amendments XIII., XIV., XV., XVI.

[498] See Amendment XVII.

[499] See Amendment XII.

[500] See Amendment XI.

[501] See Amendments XIII., XIV., XV.

[502] The word, “the,” being interlined between the seventh and eighth

Lines of the first Page, The Word “Thirty” being partly written on an

Erazure in the fifteenth Line of the first Page, The Words “is tried”

being interlined between the thirty-second and thirty-third Lines

of the first Page and the Word “the” being interlined between the

forty-third and forty-fourth Lines of the second Page.

[503] New Jersey withdrew her consent to the ratification on March 27,

1868.

[504] Oregon withdrew her consent to the ratification October 15, 1868.

[505] Ohio withdrew her consent to the ratification in January, 1868.

[506] North Carolina, South Carolina, Georgia, and Virginia had

previously rejected the amendment.

[507] New York withdrew her consent to the ratification January 5, 1870.

[508] Ohio had previously rejected the amendment May 4, 1869.

[509] New Jersey had previously rejected the amendment.

Transcriber’s Notes

Punctuation and spelling were made consistent when a predominant

preference was found in this book; otherwise they were not changed.

Simple typographical errors were corrected; occasional unbalanced

quotation marks corrected.

Ambiguous hyphens at the ends of lines were retained; occurrences of

inconsistent hyphenation have not been changed.

Index not checked for proper alphabetization or correct page references.

Page 1: Duplicate book title removed by Transcriber.

Page 148: “and another nation” was printed as “notion”; changed here.

The Essentials of American Constitutional Law · 第 13 / 13 章