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.