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Full text of "Some account of the work of Stephen J. Field, as a legislator, state judge, and justice of the Supreme court of the United States"

SOME ACCOUNT 



OF THE WOUK Ol' 



STEPHEN J. FIELD 



LEGISLATOR, STATE JUDCiE, AND JUSTICE OF THE 
SUPREME COURT OF THE UNITED STATES. 

^ ^ ' ( U WITH AN 



INTRODrCTOKY SKETCH 

BY 

J. MORI ON POX^IEROY, I.I.. D. 

1881. 

AND AN APPENDIX 

CONTAINING 

His remarks on the Life aud Character of Chief Justice Chase ; his 
address at the Centeunial Celebration of the organization of the Federal 
Judiciary, February 4, 1890 ; the memorial from Senators from California, 
Nevada, Oregon, and Idaho, and from the judges and members of the bar 
of California, and from the Federal judges in that State, requesting him 
not to change his circuit : and the story of his attempted assassination 
by a former associate on the Supreme Bench of California. 

By Hon. GEORGE C. GORHAM. 



1895. 




Copyright, 1882, by S. B. Smith. 



9 



INDEX. 



iNTRonucTORY Sketch by Prof. Pomeuoy : Pagks. 

1. Early life of Judge Field 6-i:5 

2. His work as a Legislator 13-'22 

;{. His work as a member of the California Supreme Court 22-4;". 

4. His work as a member of the U. S. Supreme Court 4o-(il 

Note by the Editors "-J 

Judge Field as a Legislator •'> 

a. Legislation for the protection of miners in their mining 

claims '^8 

h. Legislation for the exemption from forced sale of tools and 

other personal property of debtors S-ll 

v. General Legislation secured by him 11-14 

Judge Field as a member of the Supreme Court of Cali- 
fornia : 

1. His election l-'i 

2. Estimate of his judicial career on that bench by Judge 

Baldwin lf> U' 

?,. Unsettled condition of land titles in the State from three 
causes : 

a. Extent and indefinite boundaries of Mexican grants.. 20 24 
h. Occupation of the public lands by settlers in ad- 
vance of legislation by Congress 24-2."> 

c. Claim of the State to own the minerals in the soil.. 26-2!) 
4. His opinions on : 

a. Patents for lands by the United States :><> 

ft. Municipal corporations •''^' 

c. Mortgages and other subjects •»•> 

d. A Sunday law 34-:JT 

e. The non-receivability of Legal-Tender notes for 



taxes.. 



;?8 



JviHilC P'IKM) AS A MKMBIiR ()F Tin: SLJ'RICMt; COUKT OF THE 

U N IT E I ) St A T ES : Packs. 

1. His appointment 39 

2. His opinions on — 

1. The Milligan case 4il-42 

2. The Cummings case 42-45 

3. The Garland case 45-40 

4. TheMcArdle case 46-50 

5. The Confiscation eases 50-59 

6. Cases on Pardon and Amnesty 59 ()5 

7. Legal-Tender cases and Confederate notes (i5 s(j 

8. The legislative power of the Insurgent States duiing 

the civil war, and the extent to which the Confed- 
erate Governlixent could be regarded as a de facto 
government 87-96 

9. Protection from military arrest and imprisonment, 

(hiring the war, of citizens not in the military ser- 
vice of tlie United States, where the Civil Courts 
were open 90-105 

10. Protection to officers and soldiers of the United 

States army in the enemy's country daring the 

war 105 

. (1. Coleman vs. Tennessee lOC-112 

h. Dow vs. Johnson 112-119 

11. Protection of sealed matters in the mails from in- 

spection of officials of the Post Office 119-124 

12. The Fourteenth Amendment and the Slanghter- 

House cases 124-156 

13. The power of the State to control the compensation 

receivable for the use of private property and ser- 
vices in connection with it. The Chicago Ware- 
house cases 156-173 

14. The relation between the General Government and 

the State Governments : 

a. The Virginia Jury cases 173-201 

b. The Election cases from Ohio and Maryland... 201-216 

15. Corporations — cases relating to their powers and 

liabilities : 

a. Paul vs. Virginia 216-219 

h. Marsh vs. Fulton County 219-221 

e. Tomlinson vs. Jessup 220 

d. The Delaware Railroad Tax Case... 221-222 

e. Board of Commissioners of Tippecanoe County 

vs. Lucas, Treasurer 222 



/. Iiruii.ulitoii va. IViisiicula 222 22:5 

(J. U. S. vs. New Orleans 223-224 

• h. Pensacola Tel. Co. vs. Western Union Tel. Co... 225-2:« 

/. Union racific K. Co. vs. Ignited Stales 2:3:5-255 

1(). Other cases in the Supreme Conrt 25(5-258 

17. Inter-state eoninieree 259 

a. Welton vs. ]\[issouri 2(50-264 

/;. Sherlock vs. Ailing 2(54-268 

c County of .Mobile vs. Kimball 268-27:5 

18. Tiie ])Ower of taxation by the Oeneral and State 

Governments: 

State ta.NL on Ibreigu-'held bonds 27:5-283 

19. The trust character of directors of corporations : 

Warden vs. Union Pacific R. Co 283-288 

20. The use of running waters on the public lands 288 

n. Atchison vs. Peterson 289-294 

h. Basey vs. Gallagher 294-295 

Casks in the Circuit Court of thi: UNiTcn States: 

1. U. S. vs. Greathouse 296-305 

2. U.S. vs. Knovvles 305-:509 

3. U. S. vs. Smiley :509-313 

4. ^A'-partc Cavanaug'h on habeas corpus 314 

5. Hardy vs. Harbin 315 

6. Hall vs. Unger 321-:528 

7. Montgomery vs. Beavans.. , 328-335 

8. United States vs. Flint, Throckmorton, and Carpeutier... 335-349 

9. The Eureka case 350-360 

10. The municipal lands of San Francisco. The Pueblo case... 360-:}76 

11. The legislation of California, State and municipal, against 

tl»e Chinese ;57G-;584 

a. The case of Ah Fong on habeas corpus 384-:594 

h. Ah Kow vs. Nunan 398-405 

12. Other cases in the Circuit Court 409-410 

The Ei.ectoral Commission of 1877: 

1. The Florida case 415-430 

2. The Louisiana case 430-4:52 

:5. The Oregon case 432-439 

4. The South Carolina case. 439-440 

5. General disappointment of the country at the action of 

the Commission, from the Public Ledf/er of Philadel- 
phia 440-442 



APPEiMDIX. 

Opinions ol" the Supreme Court in the Test-Oath cases, de- 
livered by Judge Field : rA(;Es. 

1. In the Cummings case 445 

'2. In the Garland case 4.")? 

Remarks of Judge Field ou the life and character of Chief 

Justice Chase , 465 

Introductory address of Chief Justice Fuller at the Cen- 
tennial Celebration of the organization of the Federal 
Judiciary 475 

Address of Justice Field on the same occasion 477 

The speech of Justice Harlan made at the banquet in the 

evening 501 

Memorial from Senators from California, Oregon, Nevada, 
iind Idaho, and from the judges and members of the 
bar of California and the Federal judges in that State, 
requesting Justice Field not to change his circuit 509 

The story of his attempted assassination by a former asso- 
ciate on the Supreme Bench of California A. 

CONOLUSION B 



INTRODUCTORY SKETCH. 



I purpose to analyze and descrilje the work and it^ re- 
sults of one wlio, to an extraordinaiy degree, has Impressed 
his own conceptions upon the jurisprudence of the coun- 
try — as much so, perhaps, as any living jurist of America. 
To those who are informed as to the extent and variety 
of his official labors, this will not appear an extravagant 
opinion; and its correctness will l)e demonstrated l)y the 
facts which I shall produce. 

Tlie subject of this memoir belongs to a remarkable 
family — a family which well illustrates the effects of 
American civ'lization and institutions working upon the 
best J^ew England character. Commencing their careers 
with no advantages except the earl}- training of God- 
fearing parents, and the education afforded by the coun- 
try academy and college, the living members of the 
family, consisting of the brothers David Dudlej^ Field, 
Cyrus West Field, Stephen Johnson Field, and Henry 
Martyn Field, have all risen to distinction. Of the first 
two named brothers the reputation is world-wide; in fact, 
David Dudley Field and Cyrus W. Field are even Ijetter 
known and more honored throughout Europe than in their 
own country. If the fourth brother has attained to a less 
extensive fame, it is because as a clergyman he has confined 
his activities to an American church, within wiiich be has 



a high position and has long wielded a powerful influence 
as the editor of one of the leading religious papei's of the 
country. Of David Dudley Field and Cyrus W. Field it 
is unnecessary to speak. The former, hy his reforniing 
measures in the systems of procedure in the courts, has rev- 
okitionized the modes of administering justice, and placed 
them upon a foundation of simplicity and truth in all those 
nations and regions of the world where the English common 
law has been adopted. The latter, by his far-seeing sagacity, 
untiring energy, and deep enthusiasm, has been the leader 
in accomplishing that triumph of science and conmierce 
combined by which all parts of the world are united, time 
and space are annihilated, nations are made one, and the 
vast world-wide movements and transactions of business, 
trade, and commerce are controlled. The work of tlie 
third brother, who is tlie subject of this sketch, lias been 
restricted to the legislation and jurisprudence of his own 
country, but in some respects it is equal in importance and 
variety to that accomplished by either of his brothei-s. 

Stephen Johnson Field was born in Haddam, Connecti- 
cut, on the 4th of November, 1816. His grandfathers on 
both his paternal and maternal sides served as officers in 
the Revolutionary War, and were descended from a I'uri- 
tan stock, their ancestors being among the earliest settlers 
of New England. In 1819, when he was about three years 
old, his father, who was a Congregational clergyman, 
removed to Stockbridge, Massachusetts, and Stephen's 
childhood and early youth were there passed in what has 
l)ecome one of the most famous and classic spots of New 
England. At the age of thirteen, a step was taken by 
him which undoubtedly produced a deep and lasting im- 
pression upon his intellectual and moral character, al- 
though its effects upon his external life were temporary 
and trifling. In 1829 an -elder sister married the Rev. Jo- 
siah Brewer. Mr. and Mrs. Brewer, acting under the 
auspices of The Ladies' Greek Association in New Haven, 
80011 afterwards sailed for the Levant, with the intention 



of establishing schools in Greece lor the ciliicMllon of fr- 
niales. They invited Ste]>hen to accoin[)any them. His 
l)rother, David Dudlcv, who as (lie eldest of the family 
took a deep and active interest in promoting the wcllarc 
of the younger members, advised his going for the [lur- 
pose of stnd^'ing the Orit'iital languages, thinking that 
he coidd thereby (piality himself for a professorship of 
Oriental languages and literature in an American Uni- 
versity. With this design he accompanied his sister 
and brother-in-law. They sailed ])ecend:»er lOtii, 1829, 
and arrived at Smyrna, February 5, 1830. Mr. Brewer 
there changed his original plan and established a school at 
vSmyrna. Stephen remained in the Levant two and a half 
years. In addition to the time spent in Smyrna he visited 
many of the islands of the Grecian Archipelago, and fa- 
mous cities of Asia Minor, and passed one winter in 
Athens in the family of the Rev. John Hill, the well- 
known American missionary of the Episcopal Ghurch. 
Mr. and Mrs. Hill had been on a visit to Smyrna, and Mr. 
Hill being detained by some matters of business, Mrs. Hill 
I'eturned to Athens without him. Stephen acconipained 
her as her escort and remained at Athens until Mr. Hill's 
return. During this residence in the East, Stephen learned 
the modern Greek so that he was al)le to write and to 
speak it with ease, and acquired some knowledge of the 
Erench, Italian, and Turkish. But the most important and 
lasting result of the time thus spent in the East during 
the plastic period of his youth, was a moral one; and the 
lesson which he there learned was that of religious tol- 
eration. He had been 1)rought up as a boy in the strict- 
est tenets of Calvinism. As he says of himself, '"he had 
been taught to believe that the Xew England Puritans 
possessed about all the good there was in the religious 
world," and to look with distrust upon all the great his- 
torical churches wdiich they, with one sweeping condem- 
nation, called Nominal Christians. During his Eastern life 
he was thrown into close contact with lioman Catholics. 

B 



10 

members of the Greek Church, and Armenians, as well 
as with Mahometans ; he saw examples of faith, devotion, 
piety, and virtue among them all, and was profoundly 
impressed by them. Indeed, his views undei'went an en- 
tire revolution; and thei-e was laid the foundation of that 
broad tolerance which has ever since been a distinguish- 
ing element of his character.* 

He returned to the United States during the winter of 
1832-3; entered Wilhams College in the fall of 1833, and 
was graduated in 1837, having obtained the highest honors 
of his class — the Greek oration at the Junior Exhibition, 
and the valedictory oration at the Commencement. He 
entered upon the study of the law during the Spring of 1838, 
in the office of his brother, David Dudley, in Xew York 
City, and was admitted to the Bar in 1841. A portion of 
this interval he spent in Albany, giving instruction to 
classes of the Albany Female Academy, and pursuing his 



* Stephen was in Smyrna when the clreaded plague visited the city in the spring 
of 1831. Every one tlien avoided his neighbor as if contagion would follow the slight- 
est touch. Says a writer describing the scenes : " If two men met in the street, each 
drew away from the other, as if contact were death. Sometimes they hugged the 
walls of the liouses, with eanes in their hands ready to strike down any one who 
should approach. All papers and letters coming through the mails were 
smoked and dipped in vinegar before they were delivered, lest they might commu- 
nicate infection. Even vegetables were passed through water before they were 
taken from the hands of the seller. Terrible tales were told of scenes when guests 
were carried away dead from the table, and servants dropped down while waiting 
upon it. On every countenance was depicted an expression of terror." Mr. Brewer 
remained in the city for two or three weeks, and then left with his family in a 



In the Fall of the same year Smyrna was vi-sited with the Asiatic cholera. Hun- 
dreds died every day from its attacks, and thousands left the city and camped in the 
fields. Mr. Brewer gave his time to administering to the sick and dying. With his 
pockets filled with medicines he went through the lanes and alleys of the city on 
his errand of mercy. Stephen, with his pockets filled in the same way, accompa- 
nied him in all his rounds. Commodore J. E. DeKay, in a work entitled " Turkey 
in '31 and '32," thus speaks of the heroic devotion of :Mr. Brewer in those terrible 
scenes, as follows: 

" The efforts of the physicians at Smyrna during the fearful season of cholera, 
were nobly seconded by many of the foreign missionaries. Among these I heard 
the labors of Mr. Brewer everywhere spoken of in terms of admiration. Furnished 
with all the requisite remedies, he scoured every lane and alley, proclaiming his 
benevolent intentions, and distributing even food to the needy. Let history, when 
it repeats the story of the good Bishop of Marseilles — who, after all, was merely a 
soldier at his post — also record the benevolence and the proud contempt of danger 
and of death eyliiced by an A'TiBrioan stranger within the pestilential walls of 
Smyrna." 



11 

St in lies ill tlio olWvc olMolui \':iii IJiirciK tlu-ii llic Attonicv - 
(Jeiicral of tlic State, and at tlu' suiiimit of his l.riHiaiil 
Imt (lisap[ii'intiiii;- earee.i-. On Iieinu- admitltMl to tiu' Bar, 
lie was taken into [)artnei's|iii) \)\ his hrotlier in Xew 
York City, whieh eoiitinued tintil the yeai- 184.S. On 
the breaking out of the Mexiean war, and aii-ain at its 
close, his brothel' advised him to reiiio\c to Caliiornia, 
making generous oti'ers of pecimiarv means for iii\-est- 
ment in the purchase of land, hut Ste[theii had a strong 
desire to visit Europe, and declined the proposal, lie 
sailed for Europe in June, 1848, with the design of making 
an extensive tour. Wliile in Paris, the following winter, 
lie read the annual message of President Polk to Coiigress, 
which officially announced the discovery of gold in Cali- 
fornia. He then felt some regrets that lie had not acted 
upon tlie advice of his brother, but nevertheless concluded 
to visit the most interesting parts of Europe before return- 
ing. He did so, and returned to Xew York in the P^dl of 
1849, arriving on the 1st of October. Soon afterwards he 
left for California. 

As I do not intend to write a life t)f Judge P'ield,! shall 
not attempt to describe the incidents and adventures of 
liis Cahfornia career. It will be sufficient to mention the 
most important events, so as to exhibit the more clearly 
his public and official labors, and to fix the date of the 
successive steps which he took until he reached his present 
high position as a memlier of the Supreme Court of the 
United States. 

He arrived in San Francisco on the 28th of Decem- 
ber, 1849, with hardly any funds, and with no resources 
except untiring energy and capacity for work, great in- 
tellectual ability, natural and cultivated, the well-laid 
foundation of legal learning, and the high hopes of open- 
ing manhood. In Jannary, 1850, he removed to a settle- 
ment just commenced which became the important inland 
city of Marysville. Here he established himself, and the 
place continued to be his home during the whole of his 



12 

professional life in California, until 1857. He was at once 
elected the first alcalde of the new town, and held the 
office until the organization of the State government, and 
the introduction of American institutions. In the Fall of 
1850, he was elected a memher of the Assembly, the pop- 
ular branch of the State Legislature, from the county in 
which Marysville was situated. This Legislature com- 
menced its session on the first Monday of January, 1851, 
and he was confessedly the leading and most efficient mem- 
ber of the body; many of its most important and perma- 
nent acts were planned, proposed, and adopted through his 
agency. At the expiration of the session he returned to 
Marysville, resumed the practice of his profession, and 
soon attained the recognized position of one of the fore- 
most lawyers in the State, and so continued until, in the 
Fall of 1857, he was elected a Justice of the State Supreme 
Court for the term of six years, commencing on the first 
of January, 1858. At this election 93,228 votes in all 
were cast; of these he had 55,216, one of his competi- 
tors, 18,944, and the other, 19,068, so that he received a 
majority of more than 36,000 over each of the other 
candidates, and of 17,204 over both combined. A va- 
cancy occurring on the Bench through the death of one 
of the justices, he was appointed by the Governor for 
the unexpired term, and took his seat on the 13th of Octo- 
ber, 1857. On the resignation of Chief Justice Terry, in 
September, 1859, he became Chief pjustice. He remained 
HI this high office until, in 1863, he was removed to the 
still higher position— a seat in the Supreme Court of the 
United States. On March 3d, 1863, a statute of Congress 
was approved by the President providing for an additional 
justice of the Supreme Court, and making the States on 
the Pacific Coast a new circuit. On the recommendation 
of the entire delegation in Congress from those States, 
con-biVjIaNg of four Senators and four Representatives,^of 
whont/nve were Democrats and three Republicans, and all 
Union men, — Judge Field was nominated by President 



18 

Lincoln, iiinl his iiominatiou was iinaiiiuioiislv . Miiliinicd l.v 
tlie Senate. He resiu-iu>(l the State Ju(l^-eslii|., and tenk ihr 
oatli of office as ju«li>;e of tlie United States SnprcMir C.piiit 
on the20tljof Mjiy,1863. Jlisconunission was issued Mar. h 
10th, but lie gave the following explanation ol' his sch'r- 
tion of May 20th, for entering upon tlic (hitics nf t)i,. ,,|"- 
tice. it was necessary that he should postiMuic his ictii-c- 
nient from the State Bench for a while, in order that the 
('ourt might decide the causes which had ahva.ly heen 
argued and submitted for decision, so that the parties ne.'d 
not be put to the delay and expense of re-arguments. He 
chose the 20th of May because he believed the causes 
argued would be by that time decided, and because it was 
the birthday of his father; he thought that his father would 
be gratified to learn that on the 82d anniversary of his 
own birth, liis son had become a Justice of the Suj)renie 
Court of the United States. 

Having thus mentioned the most important events of 
Judge Field's life, I shall analyze and describe his work 
(1) as a Legislator in the early days of California; (2) as 
a Judge of the California Supreme Court; and (o) as a 
Justice of the Supreme Court <»f the United States. 

l.^Jndf/r FirbPs irorl: >is a Ln/ish/tnr. 

In order to appreciate the extent and ini[)ortance of 
dudge Field's legislative work during his single term of 
otlice,and the lasting effect which it has produced not only 
upon California, but upon otiierand especially the mining 
States, the anomalous condition of the State at that early 
day must be fully understood. 1 siiall make no attempt to 
describe the mere social features of California during the 
years succeeding the discovery of gold; they have been 
often portrayed by masters in the art of word-painting. F 
shall refer to the condition of tlie State so far t ' as 
relates to the law, and the special property interests v. hicli 
then existed, 



14 

The discovery of gold, as is well known, bi-ouglit a I'usli 
of emigrants from all parts of the United States, from 
European counti'ies, from Australia, and even from the 
Pacific Islands and China. In addition to this heteroge- 
neous mixture of all nationalities was the element of 
native Mexican or Californian population. Among these 
earl\' comers, some were men of high character, intelli- 
gence, and culture, well fitted to 'oe leaders in the com- 
munity. A larger number were of less education and 
culture, hut still were full of energy, and, coming from the 
United States, were inclined to be law-abiding, possessing 
at least some of the American feeling of respect for the law 
and love of justice. A third, and it must be confessed, a 
large class, consisted of the worst characters of the older 
communities, rogues, knaves, gamblers, and professional 
criminals, acknowledging no law, and defying all law. 

The law itself of the country was unsettled. The civil 
law, as formulated in Spaidsh codes and applied to 
Spanish colonies, modified in few particulars by Mexican 
legislation, prevailed prior to the cession of California to 
the United States. Large tracts of land were held by 
grantees under concessions from Spain or Mexico; and the 
law in force contained provisions unlike any doctrines of 
the common law, concerning the organization of " pueblos" 
or towns, which were the basis of proprietary and munici- 
pal rights of enormous value; and it prescribed regulations 
for mining, and for the occupation of mineral land different 
froin the common-law rules applicable to the same sub- 
jects. 

The stream of immigrants which poured into the State 
brought along witli them their own customs, opinions, and 
preferences. At home they had been familiar with a great 
variety of laws, and they naturally preferred to follow those 
legal rules to which they had been accustomed. The East- 
ern States had mostly been settled by a homogeneous pop- 
ulation, all familiar with the common law, and they adopted 
it without a question, The same was true with respect to 



1.-) 

the States of the Ohio and Mississippi Valleys. But sueli 
was not the case with Caliiornia; no such lioniogeneity ex- 
isted among its poojilo. And it was perceived hy intelli- 
gent and thoughtful men, that the common hiw of Enghuid, 
adopted by the tirst Legislature as a I'ule of decision in 
the courts, when not repugnant to the constitution and laws 
of the State, did not meet the exigencies and conditions of 
the country. Many of its most characteristic and funda- 
mental principles and doctrines were unfitted for the new 
commonwealth, partly tVom the anomalous condition of 
society, partly- from the etfect of the pre-existing system 
of Spanish-Mexico, and partly from a great variety of most 
important proprietary interests, which had not existed in 
countries wliere tlie common hiw prevailed, or had ex- 
isted under conditions essentially ditl'ei'ent from those pre- 
sented by California. 

The proprietary rights to which I refer, and w hich at that 
time surpassed in value all others within the State, were 
those growing out of the mining industries, the claims of 
miners to occupy portions of the public mineral land, and 
to extract the mineral, the works constructed by them to 
aid in opening and developing the mines, and the ap- 
propriation of water in the mining region for that and 
other lieneticial purposes. Xo legislation, either State or 
national, had yet been enacted concerning these subjects. 
And the intricate and restrictive system of the Spanish- 
Mexican codes was as inapplicable as the doctrines of the 
common law. The seekers for gold, who had been drawn 
from all parts of the earth, were thus left to adjust their 
respective rights and claims as best they might. 

The mineral lands, as a whole, belonged to the United 
States, as a part of the public domain ; but dilferent opin- 
ions prevailed with respect to the ownership of the min- 
erals themselves while still remaining in the soil. Some 
persons maintained that they belonged to the United 
States, others that thev were owned by the State, but the 



conviction was anivorsal that neither tlie national nor the 
State government should assert any right of ownership, 
and that its assertion would greatly impair the develop- 
ment ot" the mineral wealth of the country. The immi- 
grants had poured over the mineral regions, settled down 
in every direction, appropriated parcels of the territory to 
their own use, and were prospecting and mining in every 
mode rendered possihle by their own resources, under no 
municipal law, and with no restraint except the danger of 
conflict with other and more powerful parties who could 
wield a gi'eater physical force. As justly observed b}" one 
who, at the time, was observant of the conduct of the 
miners, " the situation was a grave one, and it demanded 
statesmanlike treatment. To do nothing was to leave 
the peace of the State at the mercy of those whose fierce 
thirst for gold might outrun their respect for fair dealing. 
Honest misunderstandings as to facts were oftenest settled 
by immediate appeal to brute force. The woi-ld has prob- 
ably never seen a similar spectacle — that of extensive 
gold-fields suddenly peopled by masses of men from all 
States and countries, restrained by no law, and not agreed 
as to whence the laws ought to emanate by which they 
would consent to be bound." 

In this condition of the country the miners had taken 
some most important steps, which illustrate in the clearest 
manner the love of order and justice, and respect for law 
which characterize American-born citizens of all classes, 
and which prevented the destructive consequences, that 
otherwise would have resulted from the absence of any 
municipal law. They were scattered over the territory 
in larger or smaller groups, located at different places, 
technically known as " camps," " bars," or " diggings." 
In each mining district they had held meetings and had 
enacted rules and regulations by which they agreed to be 
governed in that district. These rules were simple, but 
related to the most important questions of property, to 



17 

priority in claims, and the extent of gronticl wliii'li otic 
person could appropriate. The rules once adopted wei-e 
enforced with rii;-(»r uiion all settlers in the parlicuhir 
cani[). This vohmtary, self-imposed lei^Mslation ()rii;iiiate(l 
with the American immigrants, and they were ordinarily 
so su[»orior in numhcrs that they could com[)el oljedience 
hy the less law-ahiding foreignei's. The rules they ado^jted 
governed the extent of each individual claim at the partic- 
ular locality, and prescrihed the acts necessary to constitute 
such an appropriation of a parcel of mineral land oi- por- 
tion of a stream as should give the claimant a jirior right 
against all others,, the amount of work which should entitle 
him to continued possession and enjoyment, what sliould 
constitute an ahandonment, and like fundamental condi- 
tions to the acquisition and use of their respective claims. 
These rules differed in their details in the various camps, 
hut there was still a general similarity among them all. 

In this condition the Legislature of 1851 was called upon 
to act. Mr, Field, as the result of accurate knowdedge and 
careful study, determined upon a legislative policy. He 
understood the material upon which any legislation must 
work; he was familiar with the miners as a class, and knew 
their habits and peculiarities, their common sense and gen- 
eral love for fair play, coupled with strong will and occa- 
siomil violence. He saw at a glance that the Legislature 
could not enact any compli(!ated system of mining law that 
would not interfere with the regulations wdiich they them- 
selves had estahlished, and under which their claims were 
protected. The plan which he finally concluded to pro- 
pose,- and, if possible, procure to be adopted, was simple, 
and its very simplicity may, at first blush, tend to ob- 
scure its wisdom ; but all possible doubts in that respect 
have long since been settled by its complete success. The 
root idea of this plan was that the rules voluntai'ily im- 
posed upon themselves by the miners should receive the 
sanction of the law, and as laws should b^ enforced by the 
courts in adjudicating upon mining rights and claims. 



18 

He, therefore, drew up and ottered to the Legislature the 
foUowhig provision, which, through his advocacy, was 
adopterl and incorporated into a general statute regulating 
proceedings in civil cases in the courts of the State : 

" In actions respecting mining claims, proof shall he 
admitted of the customs, usages, or regulations estahlished 
and in force at the bar or diggings embracing said claim-!, 
and such customs, usages, or regulations, when not in con- 
flict with the constitution and laws of this State, shall gov- 
evn the decision of the action." 

The far-sighted sagacity, expediency, and wisdom of this 
provision have been c<jnclusively established by the ex- 
perience of thirty years throughout all the Pacific Mining- 
States and Territories. The same fundamental principle of 
recognizing and giving the force of law to the local cus- 
toms and rales of the miners has been continued without 
change in the subsequent legislation of California, and has 
been incorporated into the statutes of the other Mining 
States. It has also been accepted by Congress; and with 
some modifications in detail, and especially with the addi- 
tion of a^ more certain and nniforin specification as to the 
extent of each mining claim and the modes of location 
and appropriation, it has been made the basis of the laws 
enacted for the government of the public mineral lands. I 
therefore venture the opinion, and think that its correctness 
cannot be questioned, that no single act of creative legis- 
lation, dealing with property rights and private interests, 
has exceeded this one in importance and. in its effects in 
developing the industrial resources of the country. The 
causes which led to its enactment, its simple but efficient 
nature, and its beneficial consequences, cannot be better 
described than in the language of Judge Field himself, in 
an opinion dehvered many years afterwards in the Su- 
preme Court of the United States, in the case of Jennison 
vs. Kirk, an extract from w^hich is given on pages 6, 7, 
and 8 of the accompanying volume. 

This enactment gave the force of law to an equitable sys- 
tem of mining and water regulations, and has been the di- 



19 

rect means of [H'oiiiotiiii;- and protecting an industry wliirli 
has secured and added an nnt(dd amount to the total weaUh 
and resources of the country, L cannot leave this suhject 
without a hrief comn\ent u[)(>n the social events themselves 
which I have Iteen deserihing — events nnexani|iled, I 
think, in the history of any other peoi.le, 'Fhe whole cnn- 
(hict of the ndners, their voluntary adoi^tion, in the ah- 
sence of all municipal law, of regulations so Just, wise, and 
equitahle that neither the State nor the national go.vern- 
meiit has attem[)ted to improve them, exhihits in the 
most striking manner those (pialities which lie at the has[s 
of the American character. ISt) long as these qualities last, 
so long as American citizens, individually or collected 
into communities, possess and act upon these conservative 
tendencies, the liherti'es, safety, and perpetuity of the 
nation rest upon a certain and immovable foundation. 

In addition to the provision concerning mining claims, 
Mr. Field was also the author of many other measures of the 
greatest importance to the State, which was then just com- 
mencing its wonderful course of development. As most of 
these enactments relate to the internal atfairs of California, 
and have been contined in their operation to that common- 
wealth, I shall merely enumerate them, with such brief 
descri[»tion as will serve to indicate their purpose and 
character. Being a member of the Judiciary Committee, 
Mr. Field's work naturally related, in the main, to the ad- 
ministration of justice. Among the most important of 
these measures, planned and drawn up by him, was a bill 
concerning the Judiciary of the State. This act was gen- 
eral, deaUng with the whole judicial system, and requiring 
great labor in its preparation. It completely reorganized 
the judiciary, and defined and allotted the jurisdiction, 
power, and duties of all the grades of courts and judicial 
oiiicers. An act passed in the subsequent session of 1858, 
revising and amending in its details the original statute of 
1851, was also drawn up by Mr. Field, although he was 
not then a mend)er of the Legislature. The system then 



20 

planned and established in 1851, and im[)roved in 1853, 
and again in 1862, to conform to the constitutional amend- 
ments of the previous year, was substantially adopted in 
the codes of 1872, and continued in operation until it was 
displaced by the revolutionary changes made in the new 
constitution of 1879-80. In connection with this legisla- 
tion atfecting the judiciary, Mr. Field also drafted and 
procured the passage of an act concerning county sherifis, 
defining all their official functions and duties; an act con- 
cerniug county recorders, creating the entire sj-stem of 
registry which has since remained substantially unaltered; 
and an act concerning attorneys and counsellors at law, by 
which their duties were declared and their rights were pro- 
tected against arbitrary proceedings by hostile judges. 

He also prepared and introduced two separate bills to 
regulate tlie civil and criminal practice. These acts were 
based upon the Code of Civil Procedure, and the Code of 
Criminal Procedure proposed by the New York commis- 
sionei's,but they contained a great number of changes and 
additions made necessary by the provisions of the Cali- 
fornia constitution, and by the peculiar social condition and 
habits of the people. They were by no means bare copies 
taken from the New York Codes, since Mr, Field altered 
and reconstructed more than three hundred sections and 
added over one hundred new sections. The two measures 
were gerierally designated as the Civil and the Criminal 
Practice Acts. They were subsequently adopted by the 
other States and Territories west of the Rocky Mountains. 
They continued with occasional amendments in force in 
California until the present system of more elaborate codes 
was substituted for them in 1872; and even this change 
was more in name than in substance, since all tiieir pro- 
visions substantially reappear in some one of these codes. 

In the Civil Practice Act he incorporated the provision 
above mentioned respecting mining claims. He also in- 
corporated into it another provision, which has become a 
permanent featm-e of the legislative policy of California, 



21 

and has proved of inestimable benefit to its population — 
the provision exemptins: certain articles of property of 
judgment debtors iVoni seizure and sale u[>()n execution. 
Some exemption has long been found in the statute- 
books of every State, but it lias ordinai'ily ix'eii small in 
amount and value, restricted to householders, and extend- 
ing only to a few articles of absolute necessity for the ex- 
istence of a family— such as a little kitchen and bed-room 
furniture, bedding, clotbing, and a few other similar ar- 
ticles. Mr. Field justly thought that the scheme qf ex- 
emption sliould, especially in a new State, be planned 
after another policy, — a policy of generosity as well as of 
strict justice, believing that even the strictest justice and 
the claims of creditors would be better subserved thereby. 
The fundamental principle of the plan proposed by him 
was, that every person, in addition to those articles neces- 
sary for individual preservation, such as clothing, reason- 
able household furniture and effects, and the like, should 
be secured in the possession and use of those things by 
which, as necessary means and instruments, he pursues his 
profession, trade, business, or calling, whatever it may be, 
and acquires the ability of paying the demands of his cred- 
itors. This law, therefore, exempts, not only household fur- 
niture and the hke, but the implements, wagons, and teams 
of a farmer, the tools of a mechanic, the instruments of a 
surveyor, surgeon, and dentist, the professional library of a 
lawyer and a physician, the articles used by the miner, the 
laborer, etc. In this connection it should also be stated, 
that, though not its author, Mr. Field was a most strenuous 
supporter of the Homestead Bill, which finally passed after 
a severe struggle. At that time there was no exemption 
whatever of personal property in California, and none 
equally extensive to be found in the previous legislation 
of any State of the Union. It is understood by those who 
are familiar with Judge Field, that he looks back with 
greater satisfaction upon the exemption system which he 
thus (n-eated than upon any other of his legislative work. 



It lifted a lieavy load iVoiii debtors, ciiaMcd lli-Mii to ]>nr- 
sue their calliiiu'.s with freedoui, and instead oi' defeating 
the ends of justice by preventing the collection of debts, 
it has actually operated in favor of creditors, by securing 
the means whereby debts can l)e paid. 

Mr. Field also drew a bill creating the Counties of jSTe- 
vada and Klamath. As there was nmch complaint at the 
boundary lines of several counties in the State, various 
Ijills for their correction had been presented. These being 
referred to him, he reported a general bill revising and 
amending the bill of the previous year, dividing the entire 
State into counties, and establishing the seats of justice in 
them, in which the provisions for the new counties were 
incoi-porated; and the bill passed. lie also drew the char- 
ters of Marysville, Nevada, and Monterey; and the bill 
regulating divorces and detining the causes for which 
marriages may be annulled and absolute divorces granted. 

The foregoing summary shows an enormous and, I ven- 
ture to say, an altogether unprecedented amount of legis- 
lative work, conceived, prepared, perfected, and accom- 
plished by one man in a single session of only a few 
months in duration. The influence of this legislation 
upon the people and the material prosperity of California 
has been simply immeasurable; but it has not been eon- 
lined to the limits of a single State; it has extended over 
the entire Pacific Slope, and especially through all tlie 
mining regions. 

II. — His work (fs (I Mejnhcr of i/ie Calif orrtia Suprcnir Court. 

The direct effects of Judge Field's work on the State 
Bench, various and important as it was, have, of course, 
been confined to the State of California; and it is little to 
say that he has contributed more than any othei- of the 
judges to settle the jurisprudence of that State upon a 
broad and scientific basis of justice and equity. 

As a student of the California law, I venture the opinion 
that wherever the present codes ]iave departed from ihe 



rules laid down I)_v liiiu in his decisions, or in statntos of 
Avhicli he was the author, it will be found that the ehan^'e 
has he'en lor the worse — that it has j.rodueed ineonveni.Miee 
and sonietinies injustice, 

The liHllrcit etiects of his work have extended through- 
out the whole eountrv, in two distinet forms: Flv^^t. Many 
particular conclusions arrived at by the Court tiirough his 
influence, and embodied in positive rules for the State of 
California, and, in some instances, incorporated into its 
statutory legislation, have been bori'owed by the Courts 
and Legislatures of other commonwealths ; and thus, 
while directly constructing the law for one State, he 
has actually performed the same labor for other States of 
the Union. Seronilh/. Tlie general doctrines which he as 
a judge, or the Court under his lead, has discussed, ex- 
pounded, and declared in judieial o[tinions, have exerted 
a powerful influence in aiding the decisions of other 
tribunals and in shaping the development of legal and 
equitable principles in other parts of the Vnited States. 

In the examination which I shall now make of his 
work in the State Supreme Court, I shall not attempt 
to describe in detail any causes in the decision of which 
lie took a part, nor to quote from his legal opinions, 
nor to narrate the legal controversies which he aided in 
adjusting, nor even to discuss tlie legal principles and doc- 
trines w-hich he determined. The most important of these 
causes, opinions, controversies, and doctrines may l)e found, 
set forth at sufficient length and fully explained, in the 
printed vohmie to which this sketch is designed as an in- 
troduction. It would be a useless expenditure of time and 
lal)or for me to recapitulate in a condensed form the mat- 
ters of fact which are there more elaborately displayed. 
For this account in all its completeness of detail I simply 
refer to that section of the volume which deals with 
his labors while a judge of the Supreme Court of Cal- 
ifornia. The single purpose of this second division will 
be to portray his character as a judge; to describe the gen- 



24 

eral nature of liis Slate judieial work as a whole, and to 
enumerate the most important legal principles and 
branches of the State jurisprudence which were deter- 
mined and establislied by him, and by the Court through 
his influence. 

In order to form any adequate conceptioti of his judi- 
cial character, the nature and extent of his judicial work, 
and the vast results w'hich it accomplished, it is neces- 
sary^ to understand and to appreciate clearly the remark- 
able and wholly anomalous condition of the law at the 
time when he took his seat in the court. I have ah-eady 
spoken of this condition in general terms, Cahfornia was 
utterly unlike any of the other States at their early settle- 
ment. From the heterogeneous mass of immigrants, every 
variety of legal notions, habits, customs, and national sys- 
tems was represented among the population. The com- 
mon law was not accepted as a whole, and how far its 
principles should prevail as the foundation of the State 
j urisprudence was not determined. The civil law^, moditied 
and adulterated by passing through the Spanish-Mexican 
Codes, was acknowledged as furnishing the rules control- 
ling many of the older land titles. 

In the absence of positive law, tlie various settlements 
and collections of miners had adopted local regulations 
concerning mining and water privileges, which were 
treated as having the force and effect of law. The great- 
est amount, however, of embarrassment and difficulty 
presented arose from the vast number of peculiar inter- 
ests, industries, and proprietary rights and claims, wholly 
unlike anything to be found elsewhere in this country, 
and for which the principles of the common law and of 
equity, and the statutes of England and of the other States, 
furnished few, if any, analogies. Among these were the 
mines and all mining operations, water claims, ditches, 
irrigating canals, the titles to minerals in the soil, and 
the Mexican titles to land grants. In fact, the California 
judge was obliged to perform his work Avith little help 



from his previous knowledge of the law in the settlement 
of these and similar questions — questions entirely differ- 
ent fr*)in those which had been presented to other courts, 
American or English. He was required to frame a State 
jui-isprudence de uoro — to create a system out of what was 
at the time a mere chaos. Three distinct matters fur- 
nished the material for the nK)st important as well as vio- 
lent controversies, involving legal questions of the utmost 
difficulty and magnitude, affecting pecuniary interests to 
an incalculable amount, and provoking most bitter ani- 
mosities among the opposing parties — which animosities 
were often directed against the judges when the unjust 
and illegal claims of individuals or communities were de- 
feated. These matters were: 1st. The immense extent 
and indefinite boundaries of the Mexican land grants. 
2d. The occupation by settlers of the public lands belong- 
ing to the United States, before the government had taken 
any steps to provide regulations for their use and sale. 
3d. The mineral resources, the mining and water rights, 
and the claim of California to own the gold and silver 
found in any lands situated within the State. 

Added to this unprecedented condition of the law was 
the equally unprecedented condition of all business rela- 
tions subsisting between individuals, which cannot be bet- 
ter portrayed than l)y quoting the language of an associate 
with Judge Field upon the Supreme Court Bench of the 
State : 

"When, in addition, it is considered that an unex- 
ampled number of contracts, and an amount of business 
without parallel, had been made and done in hot haste, 
with the utmost carelessness; that legislation was accomp- 
lished in the same way, and presented the crudest and 
most incongruous materials for judicial construction; and 
that the whole scheme and organization of the government, 
and the relation of the departments to each other, had to 
be adjusted by judicial interpretation, — it may well be con- 
ceived what task even the ablest jurist woukl take upon 
himself when he assumed this office." 



26 

On the whole, the OaHfornia judges were confronted hy 
a task enormous in its diiticuUy and importance; wholly 
unprecedented in the leo-al and judicial history of the 
country; with little aid from the doctrines of jurispru- 
dence prevailing in other States; and requiring to be grap- 
pled with, adjusted, and settled without delay, upon a just 
and sohd basis. Their difficulties were still further en- 
hanced by the character and dispositions of a large por- 
tion of the population. As was inevitable, the absence of 
legal and social restraints had induced great numbers of 
persons to engage in the most extensive schemes of fraud- 
ulent acquisition, of grasping and accumulating property 
through an open disregard of others' rights, of asserting 
the most unscrupulous and unfounded claims, of over- 
riding law, order, equity, and justice in every possible 
manner, having the semblance of legal sanction. These 
persons were often influential, and could control the new^s- 
papers and other organs of temporary popular opinion. 
When their projects were thwarted by judicial deci- 
sions, they attempted to coerce the Court by public at- 
tacks of the most bitter nature upon individual judges, 
attacks such as have never been known, and would never 
for a moment be tolerated in the Eastern States, but which 
the Court was powerless either to prevent or to punish. The 
most able and upright members of the Court were made 
the objects of virulent abuse, the extent and fierceness of 
wdiicli we can hardly realize at the present day. It is true, 
that in the course of time, the truth gradually asserted its 
power, tlie public mind appreciated the justice and integ- 
rity of the decisions, perceived their wisdom, and acknowl- 
edged their beneficial results. Xotwithstanding this com- 
plete change in the popular opinion, now at the present 
day the old abuse is occasionally revived; individuals 
whose schemes were defeated still pursue the court with 
their hostile criticisms. As Judge Field stood pre-emi- 
nent among his associates in the fearless discharge of duty, 
he has been the especial object of tliese persistent libels. 



27 

Such being the problem presented to the California Su- 
pi-enie Court, it should be added, in forming a just esti- 
mate of Judge Field's work, that up to the time when he 
was placed upon the Bench, much less had been done to- 
wards its permanent solution than the public had a i-ight 
to expect. The Court, in its early years, had not always 
commanded that entire confidence and respect of the 
public which are essential to any tribunal, if its judgments 
are to have moral weight in a community in settling dis- 
puted questions and putting controversies at rest. While 
some of its members were men of great ability and learn- 
ing, and would have added to the strength of any Court, 
some of them had not had much experience at the bar, 
and were not possessed of the requisite acquirements for 
their position. And it must be confessed also that some 
of them, by their hal)its, had subjected themselves to un- 
pleasant comment, and the Court had thus sutiered in public 
estimation. It would subserve no useful purpose to enter 
into any particulars. The distinguished members of the 
Court of those days now living nve the most ready to ad- 
mit and deplore the truth of this statement. Their use- 
fulness was greatly impaired by the circumstances men- 
tioned, of wliich no one was more forcibly impressed than 
themselves. 

The most iuq»ortant work of Judge Field was done 
after Judges Baldwin and Cope had become his associates 
on the Bench. They were able and learned judges, and 
fully bore their share of the labors of the Court. Some 
of their opinions were admirable specimens of judicial 
reasoning. Yet it is admitted l)y all who were personally 
acquainted, as contemporaries and juirticipants, with the 
judicial history of the State, and it is a truth patent to 
all who have obtained their oidy knowledge from the 
reports of decisi(Mis during his term of olhce, that he 
assumed and maintained the position of leadership. In 
the fundamental principles adopted 1)v the Court, in the 



28 

doctrines which it announced, in the whole system which 
it constructed for the adjustment of the great questions 
hereinhefore described, his controUing influence was ap- 
parent; his creative force impressed itself upon his asso- 
ciates, guided their decisions, shaped and determined their 
work. The pre-eminence which he thus attained was 
universally recognized. 

Many of the decisions of the Court, however, though ex- 
hibiting great ability and learning, were of local interest 
alone, dealing with matters confined to California, or, at 
most, to the Pacific Coast. But in its dealings with mat- 
ters of general interest, with the principles and doctrines 
of common law and of equity, with municipal and private 
corporations, and with constitutional law, it rapidly rose 
in the estimation of the profession, until it reached a po- 
sition of authority with the Bench and Bar of the country 
second to no other State tribunal.* 

It would be a comparatively easy task for one who was 
personally a stranger to Judge Field, and was only ac- 
quainted with him through his reported decisions, to form 
a correct estimate of his judicial character. Its important 
elements, those which distinguish him from the other 
judges, and which constitute the special grounds of his 
success and of his power, stand out in clear-cut Hues upon 
all the creations of his oflicial laboi's. He has stamped him- 
self—his intellec.iial and moral features — deeply into all 
the work which he has done. From my own personal 
acquaintance with him, but chiefly from a careful study 



* About four years ago I was told by a gentleman, who for many years 
had been employed by a leading law publishing house of Boston as its 
travelling agent throuigh all the States of the Mississippi and Ohio Val- 
leys, that when he first began his work the New York reports were uni- 
versally sought for in every State, but that of late years the demand had 
changed from the New York to the California reports. Everywhere through 
the Western and NorthAvestern States, he said, the profession generally 
wished to obtain the California reports as next in authority after those 
of their own States. This fact alone speaks volumes. 



29 

of all liis important judgments rendered both wliile a 
member of the State Court, and after liis transfer to tlie 
I^J^ational .Indit'iarv, r have arrlvi'd at the followini; con- 
clusions, which I unhesitatingly submit as the most strik- 
ing and distinctive elements of his judicial character and 
work. They are undoubtedly the very qualities which, 
in our system of jurisprudence, steadily developing 
through the creative functions of the courts, mark the 
ideal judge; — the qualities which have been held by, and 
which admit him to be ranked with, the very foremost 
class of jurists who have sat upon the English and Amer- 
ican Bench, — the class which endjraces among others the 
names of Hardwicke, Manstield, Cottenham, and Cock- 
burn, in England, and Marshall, Kent, Story, Sliaw, and 
Denio, in America. 

In the first and lowest place, he possesses an ample legal 
learning. It cannot be pretended that he has that exact 
knowledge of technical common-law dogmas which dis- 
tinguished such a judge as Lord Kenyon or Baron Farke, 
or of the intricate minutiae of real estate and conveyancing 
law which alone gave Lord Eldon his pre-eminence among 
English chancellors, — a sort of knowledge which with a 
certain pedantic school has passed for the highest legal 
learning, but which is worse than useless rubbish for the 
American judge of to-day. Judge Field's learning, as a 
distinctive feature of his intellect, is ratlior the capacity in 
an extraordinary degree to acquire the new knowledge 
made necessary by the demands of his position; — the ca- 
pacity to investigate sources and systems of jurisprudence 
hitherto unknown, to sift truth from error, to extract what- 
ever there is of living principle, and to appropriate and to 
assimilate the materials thus obtained with the State or 
national law which he is administering. He brought to 
the Bench a mind stored with the doctrines of the com- 
mon law and of equity, great intellectual vigor, and a most 
remarkable capacity for rapid and sustained mental labor. 
The exigencies of his position required him to investigate 



•30 

tlie Spaiiish-Mexieiui Codes, wliicli fui-nislK'd tlio authori- 
tative rules concerning " pueblos," with all the municipal 
and proprietary rights flowing therefrom, and concerning 
the Mexican Govermental grants to private owners, and 
also to create general principles and doctrines for which 
the common law and equity of England and the United 
States aiibrded very few if any analogies. It is enough 
to say that his learning, his intellectual power, and his 
thorough and accurate study of foreign systems, were 
always adequate to meet the requirements of the occa- 
sion. Still, I regard Judge Field's mere technical legal 
knowledge — the facts which he has acquired in a concrete 
form and stored up in his memory — as a very subordinate 
element in his judicial character. In this mere learning 
ho is undoubtedly surpassed by many judges who are not 
only otherwise his inferiors, but who have never even at- 
tained to any comparative distinction in tlieir own States, 
iiut in the liigli intellectual power, which I have attenq_>ted 
to descril)e, the power to analyze, to sift, to select, to ap- 
propriate truths, pi-inciples,and doctrines, and to assimilate 
them with the jurisprudence already established, and above 
all, to create where there was no material from which to 
l)orrow, he has been equalled by few, and, in my opinion, 
surpassed by none of the modern American judges. 

The second and much more inq3ortant element which 
I shall notice, is his devotion to principle; — that quahty of 
intellect which leads him, on all judicial occasions, to seek 
for, apprehend, and appreciate principles, rather than to 
rest satisfied with mere rules, although sustained by prece- 
dent, and to apply firmly these principles where found in 
all their relations and consequences ; — to place his deci- 
sions upon the sohd basis of fundamental and universal 
principles, rather than upon arbitrary dogmas. This qual- 
ity gives a most marked unity, consistency, and universal- 
ity to his decisions, not only to those connected with some 
single branch of the law, but to those belonging to any 
and all departments. llis adju<lications generally will 



31 

thus 1)(» found related to each other, hannonions, coitc- 
!s[)()ii(linii,- [)ai'ts of one completed system. This metliod of 
tidheriiiii' to pi-iiiciple as the sure and constant <::uid(! in 
ascertainini>', intevpretinii', and ap^ilyini^ the law, is tlie 
immediate and efficient cause of that most remarkahle 
consistency which runs through all liis judicial utterances. 
I shall have occasion to speak more in detail ol' this special 
feature of consistency, when descrihing his Judgments 
upon questions of constitutional law ; ami although it 
appears, perlia[)s in the most striking manner, in that 
class of cases, it is still a distinguishing mark of all his 
work. The power of discovering, apprehending, and ap- 
plying principles, is the highest mtdlectudl faculty of tiie 
ideal judge ; it takes the place of, and is universally supe- 
rior to, any amount of mere leariung ; it is the very 
essence of the best learning which can be employed in 
the judicial station. In fact great learning alone, wdth a 
total absence of the power to comprehend, combine, and 
enforce the general truths of jurisprudence, would un- 
doubtedly be more dangerous on the Bench, more liable 
to produce injustice, than comparative ignorance. This 
intellectual quality of appreciating and applying princi- 
ples, of discovering their mutual relations, of following 
them to tlieir legitimate consequences, and of applying 
them in the deduction of particular rules, which Judge 
Field possesses in sucli a high degree, has rendered his 
opinions exceedingly' useful to text-writers, who have fre- 
quently spoken of them in the highest terms of praise. 
As has already been said, many of his judgments, pro- 
nounced while in the State Court, relate to matters of 
purely local interest, such as the pecuhar land titles of 
California, the Mexican pueblos, the ownership of gold 
and silver in situ, mining and water rights, etc.; and this 
class of cases undoubtedly re(|uired for tlieir decision the 
greatest amount of original investigation, tracing of ob- 
scure analogies, and creative power, — an expenditure of 
intellectual force which can liardly be appreciated by tlie 



32 

profession in other piirts of the country who are unfaniihar 
with the intricate questions involved. On the other hand, 
many of his opinions deal with subjects of universal in- 
terest, as for example, the powers and liabilities of munic- 
ipal and of private corporations, the nature of mortgages, 
tlie validity of Sunday laws, etc. These judgments have 
uniforndy been regarded by the profession and courts of 
other States, and by text writers, as having the highest 
authority. They have been quoted with the strongest lan- 
guage of approval l)y such authors as "Washburn and 
Dillon ; and their clear and accurate statement of princi- 
ples renders them peculiarly instructive to students of the 
law in all parts of the Union. 

The third distinctive element requiring special notice is 
what may appropriately be called his creative power. By 
this designation I mean his ability in developing, enlarg- 
ing, and improving the law, by additions of new material, 
whether this material be l)orrowed from foreign sources or 
ci-eated by means of the legislative function belonging to 
all Superior Courts. The intellectual attributes referred 
to in this and in the preceding head are entirely distinct; 
they may co-exist in the same individual, or the first may 
be possessed in a high degree without the other. The tirst 
deals with the jurisprudence as it has already l)een estab- 
lished, investigating, examining, and expounding or ap- 
plying its settled principles and doctrines; the other is 
creative and legislative, employed in constructing new 
law, or reforming and expanding that which already ex- 
ists. Many judges of great and well-deserved reputation 
have possessed the first quality to a remarkable extent, 
without any of the second — of which class, I think. Judge 
Story was an example. Judge Field's peculiar talent as a 
legal reformer was shown in his purely legislative work 
done while a member of the State Assembly, and de- 
scribed in a previous division of this essay. He exhibited 
the same power and tendency upon the Bench. They 
were shown in his constant rejection of ancient common- 



33 

law (loi2:inas, no iiiattei- how liniily settled upon authority, 
which had become outi2;rown, obsolete, and unfitted for the 
present condition of society, and in the substitution of 
more just, consistent, and practical doctrines adapti-d to 
the needs of our own country and people, I merely men- 
tion, as sutHcient examples of this class, his decisions upon 
the nature and effect of mortgao:es, and those concerning 
the ownership of gold and silver while in the soil, by 
which he boldly swept away the common-law rules on the 
subject, with all the absurd reasoning upon which they 
had been founded. The same power and tendency were 
shown in his accurate perception of those principles and 
rules contained in foreign systems of juiisprudence which 
should he borrowed and incorporated into the judicial leg- 
islation of the State, both for the purpose of protecting 
many peculiar rights of property and special interests, and 
of regulating social relations, existing in California but 
unknown in nearly all the other States. Illustrations of 
the first kind may l)e found in his series of most important 
decisions concerning ''pueblos" and the municipal and 
proprietary rights belonging to tliem; and concerning 
Mexican land-grants, in which the rules were borrowed 
from the Spanisli-Mexican codes; and in those concern- 
ing the occupation of public lands and mining and water 
rights. A most illustrative example of the other kind is 
seen in his decisions relating to the community property 
of husband and wife,— an incident of the marriage rela- 
tion derived from the Spanish-Mexican jurisprudence, — 
which placed the rights of the two spouses in that unique 
species of property upon a firm and equitable foundation. 
The same power and tendency are shown in his decisions 
concerning procedure, in which he more ably and con- 
sistently, perhaps, than any other judge, has carried into 
operation the true spirit and intent of the reformed Amer- 
ican procedure. 

The fourth element of his judicial character is his fear- 
lessness. As the power to appreliend and apply princi- 



84 

pies is the hii^hest iMc/J edaul qnaWty, so is a true fearless- 
ness the highest moral attribute of the ideal judge. Ko 
other American judge has so often been called upon to 
face popular opposition in the decision of controversies 
involving important legal questions, in which large 
masses of the population were interested, and on one 
side (^f which all their passions, prejudices, and seliisii 
motives were fully aroused, and often were raging in 
the tierccst manner; and no othei- judge has more fre- 
quently and faithfully dischai-ged his sacred duty of de- 
ciding according to his own enlightened convictions of 
law aiul justice, in complete oblivion of all external 
forces, and in absolute fearlessness of the consequences. 
lie lias neitber courted personal popularity nor shrunk 
from uiipo[)iilarit3'- by means of his decisions. He could 
well apply to himself the memorable and noble lan- 
guage which Lord Mansfield used from the Dench when 
made the object of a violent clamor on account of his de- 
cisions: 

" I will do my duty unawed. What am T to fear ? The 
lies of calumny carry no terror to me. I trust that my 
temper of mind, and the color and conduct of my life, 
have given me a suit of armor against these arrows. . . . 
I wish popularity, but it is that popularity which follows, 
not that which is run after; it is that popularity which, 
sooner or later, never fails to do justice to the pursuit of 
noble ends by noble means. I will not do that which my 
conscience tells me is wrong upon this occasion, to gain the 
huzzas of thousands, or the daily praise of all the papers 
which come from the press; I will not avoid doing what I 
think is right, though it should draw on me the whole ar- 
tillery of libels, — all that falsehood and mahce can invent, 
or the credulity of a deluded populace can swallow. I can 
say, with a great magistrate, upon an occasion and under 
circumstances not unlike, ' Ego hoc animo semper fui, ut 
invidiam virtute partam,gloriara,non invidiam, putarem.' " 

IsTo friend of Judge Field can estimate his intellectual 
and moral fearlessness too highly; no enemy can denj^, or 
ever has denied that he possessed it. He has repeatedly 



35 

ciu'omitoi'od, and been conipollcdto endure, the bitter lios- 
tility of extreme partisans belonging to the most opposite 
schools of opinion; of i-xtrome Repnbhcans and extreme 
Demot'i-ats; of those wlio maintain the dogma of State sov- 
ereignty, and of those \vl)0 assei't the al)sohite legislative 
power of the national government; of ignorant and [irej- 
udieed masses, and of scheming s[)^H'nlators who would dis- 
regard all law and right in order to accom[>lish their pnr- 
poses. All these outbursts of opposition have, however, 
died away; the justice and wisdom, as well as the law, of 
his decisions are vindicated. 'fliat trne po[.ularity has 
succeeded among all intelligent persons, which, in the 
words of Lord .\hinstield, " never fails to do justice to the 
pursuit of noble ends by noble means." From the very 
commencement of his career on the State Bench, and 
through all the following years, opportunities have fre- 
(piently been presented to him, in the regular discharge of 
his official functions, by wdiicli, without any plain surren- 
der of right, any obvious transgression of duty, by the 
mere adoption of a ditfcrent line of argument leading to a, 
diti'erent conclusion, — and even sometimes when that line 
of argument and that conclusion were, upon a surface view, 
correct, and were ap[)roved by a majority of the legal pro- 
fession,— opportunities, I say, by which, in this manner, he 
might have obtained an immediate and even an enthusias- 
tic popularity; but in which, by following the voice of con- 
science and duty, and the dictates of his own matured 
judgment, he was certain to encounter a storm of hostile 
criticism, and even malignant hatred. On no occasion 
was he evei- intiuenced by either of these considerations; 
on no occasion did ho ever swerve from his duty and sur- 
render his own conscience and enlightened judgment. 
My space will not permit me to review these events in 
his life. Any correct account .of the decisions made 
in the State Supreme Court concerning the pueblo of 
San Francisco and the titles derived from the muni- 
cipality, concerning the occupation of public lands, con- 



36 

cerning the State ownership of gold and Bilvei', and the 
claims of miners to enter npon all lands, pi-ivate as well 
as public, in search for the precious metals, concerning 
the rights of Mexican grantees and the intruders upon 
their lands, and concerning the validity of certain acts 
done by the municipal government of San Francisco, 
wMl exhibit in the clearest manner the quality of recti- 
tude and fearlessness which is such a distinctive element 
of his character.* In many of tlie decisions rendered in 
the United States Supi-eme Court, indirectly growing out 
of the civil war, and directly out of congressional legisla- 
tion enacted in consequence of the w^ar, including those 
dealing with the validity of test-oaths, the extent and limi- 
tations of martial law, the trial of civilians by military 
tribunals, the suspension of the writ of habeas corpus, and 
similar questions atiecting the ver}^ foundations of our po- 
litical institutions and of our civil liberties, — the same 
quality was exhibited from a higher station and in the 
presence of the whole nation. In addition to otlier in- 
stances, there is one of later occurrence which is still 
more illustrative. It may l)e aihrmed, I thiidc, without 
any real doubt as to its correctness, that during the past 
year, by his deliberate and fearless discharge of duty, 
by following his own convictions as to the law, and by 
rendering a decision in the now memorable Chinese Queue 
Case, which, however righteous and in accordance with 
the fundamental principles of constitutional law, awoke 
a storm of fierce opposition and hatred among all the 
lowest and most ignorant classes of tlie political party 
with which he is connected. Judge Field lost— nay, sacri- 
ficed — his chances, otherwise good, of a nomination by his 
party for the Presidency. It can be certainly shown that 
scheming politicians, anxious only for their own personal 
advancement, working upon this temporary unpopularity 
among the Democratic masses of California, prevented him 

* See " Persoual Reminiscences of Early Days iu California," pages 137 
to 171, inclusive. 



87 

from obtainino- the sui>port of liis own Stale, and thus ren- 
dered his nonuiiatioii bj tlie N'ational Convention ini[.()ssi- 
ble. As a moderate Republican, knowing the opinions of 
that large division of the parly commonly called "Liberal 
Republicans," I do not hesitate to express the strong con- 
viction that if Judge Field had received the nomination 
from the Democratic party, he would certainly have been 
elected. The decision as to the validity of a nnserable city 
ordinance requiring the queues of C'hinese prisoners to be 
cut olf, lost him the Democratic support of California. lie 
has, instead, the approval of his own judgment, and of all 
intelligent, thoughtful men throughout the country. 

There are other traits of his intellectual character 
and of his work, in themselves worthy of mention, such 
as his diligence, his capacity for continued labor, his 
rapidity of execution, and particularly his clear and accu- 
rate style of hterary composition, which renders some of 
his more carefully prepared opinions models of judicial 
argumentation; but I pass them by without further no- 
tice as not being distinctive, since they are shared with 
him in an equal and sometimes in a superior degree, by 
others judges both of the State and the national courts. 

I pass to a consideration of the work which he did while 
a member of the Supreme Court of California. This 
must be merely a brief reference. Any full account would 
necessarily be a reproduction of the matters contained in 
pages 16 to 38 of the printed volume. I shall, therefore, 
simply enumerate the leading decisions, arranged in groups 
according to their subject-matter, which best exhibit his 
distinctive qualities as a judge, and embody his most im- 
portant judicial work. They naturally fall into two main 
divisions: (1) Those which deal with common law and 
equitable doctrines of general interest to the profession of 
all the States; and (2) Those whicli deal with mere local 
matters, of which the interest is chiefly contined to the 
profession and people of California and the other Pacific 
States. 



1. Mati 'IS of /I f/r/iciy// infrirsf. — Amons^ tlio most import- 
ant of these to[)ic.s were the followitiL!;. The poiocrs and 
liabilities of Marddpal Corporf/tioiis. Certain transactions 
entered into and acts done l\y the governint!,- hody of San 
Francisco gave rise to a bitter judicial controversy extend- 
ing tlirough several litigations, in whicli the Supreme 
Court was called upon to examine, from their very founda- 
tions, the doctrines of the American common law con- 
cerning the powers and liabilities of Municipal Corpora- 
tions, in the absence of express chartey or other statutory 
provisions defining and limiting the same.* The opinions 
of Judge Field in these cases are universally regarded as of 
the highest authority. They are able, thorough, and ex- 
haustive decisions of the law, and reach conclusions based 
both upon principle and precedent which have been ac- 
cepted by the ablest text-writers, and especially by Judge 
Dillon, as final. 

Mortgages. — The Supreme Court, while he was a mem- 
ber of it, freed the jurisprudence of California from the 
last vestige of the old common-law notions concerning tlie 
nature and effect of the mortgage, and adopted the I'ational 
and c »nsistent erpiitable theory as the single system which 
should (letermine all private relations and should prevail 
in all tribunals, both of law and of equity. His opinions 
explaining, advocating, and enforcing this single equita- 
ble conception of the mortgage as purely a hypothecation, 
as creating no estate in the land, as a mere lien, and not a 
jits ad rem nov a jus in re, have not been excelled in their 
clearness of statement and cogency of argument by those 
of any other Court whicli has maintained the same view, 
and they have undoubtedly done nmch to promote its ac- 
ceptance in other States.t ISTo opinions upon the sul)ject 

* McCrakcn vs. Saa Francisco, 16 Cal., 591 ; Grogan vs. The Same, 18 
Cal., 608 ; Pimental vs. The Same, 21 Cal., 359 ; Argeuti vs. The Same, 
16 Cal., 282 ; Zottman vs. The Same, 20 Cal., 9;).— See the printeil volume, 
pp. 30-32. 

t McMillan vs. Richards, 9 Cal., 365; Nagle vs. Macy, 9 Cal., 426 ; 
.Tohnsou vs. Sherman, 15 Cal., 287 ; Goodenow vs. Ewer, 16 Cal., 401. — See 
printed vol., pp. 32, 33. 



89 

are more iusti-iu'tivc (nv t\\v stiulcnt in all parts of the 
conuti'v. 

Sini'if)/ Litvs.—Vndcv ii eoiistitiitioiial provision sub- 
staiitially the same as that in most other States, a ma- 
jority of the Supreme C.)urt pronounced rmconstitutional 
and void a statute wliieh simply prohibited the kei'i»in<;- 
open of business places (with certain specified exceptions) 
an<l tlie selliniz: of goods, or exposing -them for sale, on 
Sunday. It will l)e noticed that this statute was far less 
stringent than the t,ypc of similar legislation prevailing in 
most of the States. A majority of the Court saw fit to re- 
pudiate the authority of the numerous decided cases 
unanimously sustaining the validity of such a law. The 
prevailing opinion professed to uphold religious freedom, 
and delared all statutes for the preservation of quiet and 
good order on Sunday to be fn'riitrimi.* Judge Field firmly 
and most emphatically dissented. His dissenting opinion 
is an exhaustive examination and triumphant settlement 
of all the questions involved, and most ettectually exposes 
the weak positions of the majority. It vindicates l)otli the 
validity and the wisdom of such statutes, shows their uni- 
versal approval, and demonstrates their secure foundation, 
not as intended for tlie purpose of directly supporting re- 
ligion, but for the purpose of promoting and ^ preserv- 
ing good order among the entire community. This opin- 
ion was received with the utmost satisfaction by all intelli- 
gent and thoughtful persons, not only in California, l)ut 
throughout the country. At a later day its reasonings and 
its conclusions were adopted by the Court in a subsequent 
case, and the former decision was overruled.! 

Ler/al-tender act and taxes. — Soon after the passage of the 
Legal-tender act by Congress the question arose, of vital 
importance not only to California, but to ever}' other State, 
whether it applied to the payment of State taxes. It was 
held, in an opinion delivered l)y Judge Field, that the 

* Ex-parte Newman, 9 Cal., 502. — See printed vol., pp. 34-^^7. 
t Ex-parfc Andrews, 18 Cal., G80. 



40 

clause making treasury notes " a legal tender in payment 
of all debts, private and public," is contined in its opera- 
tions to obligations for the payment of money founded 
upon contract, and does not extend to taxes imposed un- 
der State authority; tliat a debt is a sum of money due by 
contract, express or implied, wliile a tax is a charge upon 
persons or property to raise money for public purposes, 
and operates in inmtam* The doctrine of this case was 
approved and followed by the Supreme Court of the 
United States.f Besides, the power o.f taxation is one of 
tlie highest functions of government, given to the indi- 
vidual States as well as to the nation, and so far as it is 
conferred upon, and may be exercised by the States, it is 
beyond the scope of congressional interference. State 
taxes are, therefore, payable in such kind of money as 
State laws shall prescribe, entirely nnatJected by the so- 
called " Legal-tender act." 

2. Mitters of a local interest. — The long series of decis- 
ions pronounced by Judge Field, dealing with mattei's of 
local interest to the Pacific Slope, discuss legal questions 
of the greatest magnitude and dithculty, atiecting property 
of enormous value, and determine, in fact, the whole 
course of private industries in the Mining States. The vast 
amount of research, laboi', learning, and intellectual force 
which these cases I'equired, cannot be appreciated by those 
whose only knowledge of them has been obtained from 
the volumes of Reports. Nothing at all analogous to them 
can be found in the modern judicial records of the English 
Bench. The judges of a new, half-settled American State 
were called upon to decide controversies far surpassing in 
the number and difficulty of the legal questions presented, 
and in the pecuniary interests at stake, anything which 
the present generation has brought before the House of 

* Perry vs. Washburn, 20 Cal., 318. 

t Laue County vs. Oregon, 7 WaU., 71, per C. J. Chase, a most able ex- 
position of the fundamental theory of our national government, and of 
the relations between the nation and the States. — See printed vol., p. 38. 



n 

•Lords, or tlio Privv Ooiuu-il, or other liigliest trihiinal of tlio 
British Empire; :iiul many of these decisions theiuselvos 
wouM i-etieet credit upon the ahiest of tlie English judie- 
iaiT. A detailed account of thest' eontrov'ersies might, in 
the hands of a graphic writer, ])c. made a nari-ative of in- 
tense and highly dramatic inti'rest to the general as well 
as to the professional reader. Such a mirrative, however, 
I caniu)t attempt. 1 can only enumerate the most import- 
ant questions which were tinally settled l)y these succes- 
sive judicial contests, and must refer to the pages of the 
printed volume for all the particulars. It is enough to say 
that these questions, in their universality, their variety, 
and their far-reaching consequences, lay at the very bot- 
tom of the social organization in California; upon them 
depended the titles to a large portions of the lands; they 
determined the success or the destruction of the great 
mining and agricultural industries of the whole southern 
coast west of the Rocky Mountains. The following is a bare 
statement of the most important wdiich were settled in 
greatei' part, even if not entirely, tlirough Judge Field's 
influence, and the adoption of his views by the Court. 

1. T/i.e Mexican governtneutul land-r/rards, embracing as col- 
lateral or subordinate incidents, the validity of their titles, 
and the system of legal rules by which they were to be 
established and governed; the extent, location, and l»ound- 
aries of the tracts included in the grants; the I'ights of 
the original grantees or of their assigns; and the conflict- 
ing rights and claims of the actual occupants and of adjii- 
cent settlers.* 

2. The or-cupation of the United St'dcs public Ifinds b/j set- 
tlers, before any measures had been adopted by the gov- 
ernment regulating their sale or use, that is, before the 
lands were surveyed and brought under the general public 

* Ferris vs. Coover, 10 Cal., 589; Coriiwiill V8. Culver, l(i Cal,4'2i»: 
Mahoney vs. Van Winkle, 21 Cal., 576-580. 

See the printed volume, pp. 20-24; and also Judge Field's "Personal 
Reminiscences of Early Days in California,'' pp. 138-143. 
I) 



42 

land system. This embraced, as incidental and auxiliary 
questions, the mode of treating such settlers, whether they 
were to be regarded and dealt with as unlawful intruders 
and trespassers ; the nature and extent of the usufructuary 
interest which each individual settler obtained in the 
parcel of land appropriated by him from his actual occu- 
pation, and his rights thereto as against all the world ex- 
cept the United States; in considering which questions the 
Court boldly disregarded the settled common -law rules 
concerning the necessity of a legal title in order to maintain 
ejectment. It also embraced a consideration of the rights 
of such settlers to mines on the lands occupied by them, 
and to appropriate water for irrigation and other purposes, 
and a great number of similar ancillary questions growing 
out of the altogether anomalous condition of the country, 
and the absence of legislation by Congress.* 

3. The ownership of the gold and silver in the soil, and the 
claim of the State to such ownership. In one or two early 
cases the Supreme Court had, without fully examining the 
reasons originally given for the doctrine or their applica- 
bility to our own country, adopted the ancient common- 
law dogma that the ownership of gold and silver con- 
tained in all lands within the State was vested in the State 
itself by virtue of its sovereignty. t The miners soon took 
advantage of this doctrine. Claiming to act under an 
authority derived from a State statute, and even without 
any such legislative permission, the}^ asserted the right to 
carry on their mining, not only in the public lands of the 
United States, but also in all land which had been granted, 
either by Mexico, or by the United States, or by the State, 
to private owners. They even asserted this right with 
respect to private lands which were actually occupied 
by their owners, and were used by them for other pur- 

* Coryell vs. Cain, 16 Cal., 572. 

t Hicks vs. Bell, 3 Cal., 227 ; Stoakes vs. Barrett, 5 Cal., 37.— See the 
printed volume, pp. 26, 27 ; and " Early Days in California," pp. 145-149. 



48 

|)()s('s tlian luiniiiii'. tor iiii'i'icultiifc, I'or graziiiii;, or ioi" 
r(_'si(U'iuH'. This rl;iiin was not an empty theory; it was 
cai'ricd into actual o|)eratioii. Tiu' miiKU-s entered upon 
private lands at will, used and occupied for iarins, cattle 
ranches, vineyards, or any olhei' similar pui'pose, in search 
for gold and silver, heaving up the soil, and sometimes 
destroying improvements antl doing great damage.* In 
this condition of things the Supi'eme Court nobly [)er- 
formed its duty. AVith the cei'tainty of encountering the 
hostility of large masses of prejudiced and lawdess men, 
Judge Field, as the organ of the Court, swept away the 
old common-law dogma; demonstrated the absurdity of 
the I'easoning upon wdiich it had originally been rested, 
and show^ed its inapplicability to the institutions and social 
condition of this country. His opinions, which are most 
al)le specimens of judicial reasoning, established the doc- 
trine that the gold and silver in the soil belong to the 
owner of it, and that the precious metals are entirely 
unconnected witli wdiateyer of sovereignt}^ inheres in the 
State. As the United States originally owned the soil, 
so it owned all the gold and silver contained wdthin the 
same; and this owniership passed to and vested in the 
grantees of the United States and their assigns. No more 
important decisions were made by- the Court while Judge 
Field was a member of it, and although they aroused 
temporaiy opposition, they have long Ix'en acknowdedged 
as wise and just as well as legally correct.! 

4. United States patent-'^ for lands, involving their peculiar 
force and etiect, the rights which they confer, the legal 
estate of the patentees; the ecpiitable estates wdiich may 

* This was specially so on the Mariposa and Fernandez grants. Hen- 
shaw vs. Clark, 14 Cal., 4(5:5 ; Biddle-Boggs vs. ISIeroed Mining Co., Id.. 
379. 

t Biddle-Boggs vs. Merced Mining Co., 14 Cal., 37;>-r!80; Fremont vs. 
Fowler, and Moore vs. Smaw, 17 Cal., 200. 

See the printed vol., pp. 26-29; " Early Days in California," pp. 14.^- 
153. 



44 

exist either under or in opposition to them, and a nnndier 
of other incidents.* 

5. The Piiehlo of San Francisco, and the proprietai-y 
rights derived therefrom. The decision of the Supreme 
Court that a " pueblo " existed at the site of San Fran- 
cisco, and that the city had succeeded to its proprietary 
rights under the Mexican laws, settled a dispute which 
had existed since the very beginning of the American 
settlement. The opinion in the first and leading case was 
written by Judge Baldwin and concurred in by Judge 
Field. t The latter's most important work in connection 
with this matter was done Ijy him as United States judge, 
presiding in the IT. S. Circuit Court. He there rendered 
a final decree establishing the proprietar}^ rights of San 
Francisco, which was afterwards confirmed by Congress, 
and now constitutes the foundation of all the titles within 
a large part of the city limits. J 

6. The communit)/ property/ of husband and wife, its na- 
ture, and the rules regulating its management, disposition, 
and dissolution, and determining the rights in it of the two 
spouses. 1 1 

7. Other subjects.— A number of other subjects of great 
importance, which were considered by the State Court, are 
mentioned in the printed volume; such as the claim of the 
State to five hundred thousand acres of land granted by 
the 8th section of the act of Congress of September 4th, 
1841, for purposes of internal improvement, and its right 
to dispose of the lands in advance of the public surveys ; 

* Moore vs. Wilkinson, 13 Cal., 478 ; Biddle-Boggs vs. Merced Mining 
Co., 14 Cal., 361-366 ; Stark vs. Barrett, 15 Cal., 362 ; Mott vs. Smith, 16 
Cal., 534 ; Teschemacker vs. Thompson, 18 Cal., 20 ; Leese vs. Clark, 18 
Cal., 565 ; 20 Cal., 411 ; Estrada vs. Murphy, 18 Cal., 268 ; Beard vs. Fed- 
ery, 3 Wall., 478.— See printed vol., p. 30. 

t Hart vs. Burnett, 15 Cal., 530. 

X The Pueblo Case, 4 Sawyer, 553. See " Early Days in California," 
pp. 153-163 ; pp. 241-243. 

II Myer vs. Kinzer, 12 Cal., 247 ; Smith vs. Smith, 12 Cal., 216-225 ; Pix- 
ley vs. Huggins, 15 Cal., 128 ; Van Maren vs, Joliuson, Id,, 308 : Scott vs. 
Ward, 13 Id., 458, 



45 

contracts of the State for the support and labor of its con- 
victs; the power of the Courts to compel by mandamus 
officers of the State to do their duty; conflicting rights of 
miners to the use of the water of streams in the moun- 
tains for the purpose of mining; the construction of wills; 
the distinction between mortgages and deeds of trust, and 
many other matters.* 

III. — His irork as </ Mciiiber of the United States Saprevie 
Coart. 
' It is upon liis character as a constitutional lawyer, as an 
authoritative interpreter of the Xational Constitution, that 
Judge Field's reputation as a judge of the United States 
Supreme Court must ulthnatcly and mainly rest. Legal 
questions of a countless number and variety, affecting 
private rights, and involving every department of juris- 
prudence — common law and equity, admiralty, maritime 
and prize law, patent law and cop}- right, the civil law as 
embodied in Louisiana and Mexican codes, statutes 6f 
Congress and of State Legislatures, everything except 
pure matters of probate — may come before that Court for 
adjudication. Probably no other single tribunal in the 
world is called upon to exercise a jurisdiction extending 
over so many different subjects, and demanding from its 
judges such a variety of legal knowledge. But the high- 
est power of the Court, that incident of transcendent im- 
portance which elevates it far above an}^ other judicial 
tribunal, is its authority as a final arbiter in all controvei'- 
sies depending upon a construction of the United States 
Constitution, in the exercise of which exalted function, 
as the final interpreter of the organic law, it determines 

* Butte Canal and Ditch Co. vs. Yauglian, 11 Cal., 153 ; Baker vs. Baker, 
13 Id., 87 ; Pierce vs. Robinson, 13 Id., 116 ; Blanding vs. Burr, 13 Id., 
343 ; Koch vs. Briggs, 14 Id., 256 ; Noe vs. Card, 14 Id., 577 ; Norris vs. 
Harris, 15 Id., 226 ; State of California vs. McCanley, 15 Id., 429 ; Holli- 
day vs. Frisbie, 15 Id., 630; McCauley vs. Brooks, 16 Id., 12; Koppikus 
vs. State Capital Commissioners, 16 Id., 249 ; Brumagim vs. Tillinghast, 
16 Id., 266 ; Doll vs. Meador, 16 Id., 295 ; Halleck vs. Mixer, 16 Id., 575. 



tlie bounds beyond wliicb neithei- the national nor the 
tState governments niaj riglitfully pass. It is the nniqne 
feature of our civil poHty, the element which distinguishes 
our political institutions from all others, the crowning con- 
ception of our system, the veiy keystone of the vast arch, 
upon which depend the safety and permanence of the 
whole fabric, that the extent and limits of the legislative 
and executive powers, under the Constitution, both of the 
nation and of the individual States, are judicially deter- 
mined by a body completely independent of all other de- 
partments, conservative in its essential nature and ten- 
dencies, and inferior to no authority except the deliberate 
organic will of the people expressed through the elective 
franchise. This special function of tlie Supreme Court 
was from the outset denied by a small school of impracti- 
cable theorists, and during the whole period of our history 
it has been the object of bitter hostility from those by 
whom the very conception of one united people is re- 
jected. It has, however, been uniformly exercised from 
the beginning of Washington's administration down to 
the present day; it has grown in the public favor, and it 
has finally been accepted by the overwhelming weight of 
popular approval as one of the fundamental axioms of 
our governmental system. With the vast mjgority of in- 
telligent men in all parties, the well-considered decisions 
of the Supreme Court are regarded as authoritatively set- 
tling disputed questions of power and right, for the gov- 
ernment as well as for individuals, and alike for the gov- 
ernment of the nation and of the separate States. As a 
student of political science, and especially of our own 
public law, I am profoundly convinced that this peculiar 
function of the National Judiciary, as the final interpreter 
of the organic law, is the very corner-stone upon which 
rest all our institutions, and the permanence of ouv pres- 
ent organization into nation and States, each with its 
own" powers, and as a consequence the perpetuation of our 
civil and political lilierties. 



47 

No more need be said to show that the character of a 
United States judge as a constitutional lawyer, is a matter 
of the highest importance. It is chiefly in this character that 
I shall examine the work of Judge Field. In such exam- 
ination 1 shall follow the method already adoi)ted in the 
preceding subdivision. There will be no unnecessary rep- 
etition of matter contained in the accompanying selection 
from his decisions and opinions. As a prelude or intro- 
duction to that selection, I shall portray his general char- 
acter as a constitutional lawyer; state the fundamental 
principles of constitutional interpretation which he adopted 
and promulgated, describe the most important of his judi- 
cial work by which those principles have been carried into 
operation, and mention some of the leading cases in which 
the results of that w^ork have been embodied. For fuller 
details and particulars, reference must be had to the books 
of reports and to the volume of selections annexed. 

Within the past year or two, and especially since certain 
recent decisions from which he dissented, the charge has 
been repeatedly made by some pohtical newspapers, whose 
extreme partisanship is only equalled by their absolute 
ignorance of constitutional law, that Judge Field is an 
advocate of the so-called "State-sovereignty" theory, 
and that he denies the validity of, and is endeavoring to 
judicially break down, the XlVth Amendment of the 
Constitution. Nothing can be more absurdly false. The 
^'State-sovereignty" theory, as I understand it, denies in toto 
that the National Judiciary can authoritatively pass upon 
the validity of State legislation; and asserts in the most 
positive manner that the power to determine finally the 
validity of State laws and of State governmental acts, be- 
longs exclusively to each State — i. c, to the judiciary 
thereof— by itself; and insists that the construction of all 
provisions of the United States Constitution imposing re- 
strictions upon the State governments, is a judicial func- 
tion irrevocably possessed by each State, with which the 
United States or its judiciary cannot interfere. In at least 



48 

one-half the cases involving questions of constitutional 
law decided by Judge Field, he has reviewed State legis- 
lati(Mi, inquired into its validity, and pronounced it void, 
asserting in the strongest manner the revisory power thns 
exercised by the Supreme Court. Ev^en as a single judge, 
sitting in the Circuit Court, he has annulled the statutes of 
a State. In the face of these facts he is foolishly charged 
with being a judicial supporter of the " State-sovereignty " 
dogma, as above defined, by editors wdio are ignorant of 
the very meaning of the term. 

While in the Supreme Court of California he had occa- 
sion, in a very important and carefully-considered opinion, 
to exphiin the true meaning of the word " sovereignty," 
as it is applied to individual States under our political sys- 
tem, and to show that it is only in a partial and qualified 
sense that the word can with propriety be used to desig- 
nate any attribute belonging to a State, In the great case 
of Fremont vs. Fowler,* he thus describes the sovereignty 
of a State: 

" Sovereignty is a tei'm used to express the supreme po- 
litical authority of an independent -State or nation. What- 
ever rights are essential to the existence of this authority 
are rights of sovereignty. Thus the right to declare war, 
to- make treaties of peace, to levy taxes, to take private 
property for public uses — termed the right of eminent do- 
main — are all rights of sovereignty, for they are rights es- 
sential to the existence of supreme political authority. In 
this country, this authoriti/ is vested in the people, and is exer- 
cised through the joint action of their fedei-al and State 
governments. To the federal government is delegated the 
exercise of certain rights and powers of sovereignty, and 
with respect to sovereignty, rights and powers are synon- 
ymous terms; and the exercise of all other rights of sov- 
ereignty, except as expressly prohibited, is reserved to the 
people of the respective States, or vested ])y them in their 
local governments. When we say, therefore, that a State 
of the Union is sovereign, we only mean that she possesses 
supreme political authority, except as to those matters over 

*17Cal.. 200. 



49 

which siu'h nnthority is delegated to the fodei-nl govern- 
iiieiit, ov prohihited to tlie States; in other words, that she 
possesses all the rio'hts and powers essential to the exist- 
ence of an individual political organization, except as they 
are withdrawn by the provisions of the Constitution of the 
United States. To the existence of this political autlu^rity 
of the State — this (/v/illjied sorerdr/nf)/, or any yinrt of it - 
tl e ownership of the minerals of gold and silver found 
witliin her limits is in no way essential." 

This extract shows in the clearest possible light that 
Judge Field repudiates the notion of an absolute sover- 
eignty, such as is the essential attribute of a completely 
independent political society, being vested in each indi- 
vidual State; which is the very fundamental conception oi' 
the " State-sovei-eignty " theory; on the contrary, he as- 
serts the true principle, — the very central thought of all 
correct interpretation,— that the absolute sovereignty is 
rested in the people ; that a part of its sovereign powers is 
exercised by the federal government and a part by each 
State government; and that the sovereignty thus exercised 
by a State is partial and qualified. To this conception of 
the relations between the divided sovereignty, wielded in 
part by the central govertnnent and in part l)y the States, 
he has adhered during his whole judicial career. 

Passing now to an affirmative view of his work as a con- 
stitutional interpreter, I tliink that in no other department 
of the law has the element of consistency, described in a 
preceding paragraph, been displayed in a more remark- 
able manner than in this. He has adopted clear and defi- 
nite principles of constitutional law, applicable both to the 
nation and to the State, to tlie powers conferred upon the 
government of each, and to the limitation imposed upon 
those powers, and to this system, whether it be correct or 
not, he has nnquestionably adhered with absolute con- 
sistency through the entire course of his numerous decis- 
ions. No external influence has been able to sway him 
from those settled convictions. When the Court has con- 
formed to and annoimced those principles, he has agreed 



50 

with it, and has often been its mouth-piece in making 
the decision. Whenever the majority of the Court, as has 
sometimes been the case, has temporarily departed from 
those principles on either side, whether in the direction of 
sustaining State legislation or of sustaining legislation 
of Congress, he has dissented. It should be especially re- 
marked, for the benefit of those who charge him witli 
being a supporter of the " State-sovereignty theory," so 
called, that some of his ablest, best considered, and most 
forcible dissents have been from decisions of the Court 
w^hich upheld State statutes transgressing, in his opinion, 
the restrictions either of the original Constitution or of the 
XlVth Amendment. 

The fundamental principles which Judge Field has thus 
adopted, — the system of constitutional interpretation which 
as a whole he has consistently maintained, — are, in mj' 
opinion, correct. They are substantially the same broad, 
comprehensive, liberal doctrines which were promulgated, 
and enforced with a cogency of reasoning absolutely crush- 
ing, by the great Chief Justice Marshall, and supported by 
such judges as Washington, Story, Wayne, and Catron. 
Whether he has correctly applied them in every individ- 
ual case coming before him as a member of the Court, or 
whether he may not sometimes have erred in such appli- 
cation, are questions concerning which there may, per- 
haps, be a difference of opinion even among those who 
entirely agree with him in his general system. 

These principles which thus underlie all his work in 
interpreting the Constitution, and to which he has so con- 
sistently adhered, whether acting with the Court or dis- 
senting from it, are, I think, the following: (1) The polit- 
ical sovereignty and absolute supremacy of the United 
States and of its government, with respect to all matters 
within the scope of its legitimate functions, embracing all 
the legislative, executive, and judicial powers conferred 
upon it by the Constitution, and especially the power con- 
ferred upon its judiciary, of authoritatively and finally in- 



terpretiiig the organic law, and determining the nature 
and extent of all its grants and limitations of power, (2) 
Corresponding qnalitled political sovereignty exercised by 
the individual States, and t/icir exclusive pou'ers, free from 
federal interference with respect to all matters coming 
within the scope of their legitimate functions, which in- 
clude all powers not conferred upon the general govern- 
ment, or not reserved by the people themselves, incapable, 
therefore, of being exercised by either government, or not 
expressl}' prohibited to the States. (3) The recognition, 
preservation, and inaintenance, tirm and inviolate, of all 
the limitations and restrictions, whether expressed or 
necessarily implied, imposed upon the governments, both 
of the United States and of the individual States, by the 
original Constitution or by the amendments thereto, (4) 
The upholding and enforcement, as a matter of special 
moment, of all tliose particular restrictions upon the gov- 
ernmental action, both of the United States and of the sev- 
eral States, contained in the original Constitution and in 
the amendments, which are intended directly to protect 
the private rights of life, liberty, and property, and, in fact, 
that entire body of private rights which constitute " civil 
hberty." 

These principles may be still further generahzed, and 
are summed up in two ideas: Firsi, the preservation from 
every interference or invasion by each other, of all the 
powers and functions allotted to the national government 
and the State governments; and s^co??d, the perfect security 
and protection of private rights from all encroachments, 
either by the United States or by the individual States, 
These two ideas he has steadily kept in view and has made 
the basi.s of his decisions, lie has demonstrated that a 
constant and firm maintenance of the powers justly be- 
longing to the federal government, is not incompatible 
with an equally tii-m upholding of the powers entrusted 
to the States, with an undeviating adherence to the sacred 
doctrine of local self-government, and with zealous pro- 



tection of private riglits, because all, in fact, rest upon 
the same foundation. 

My purpose, in tlie remaining portion of this sketch, is 
to show that Judge Field has uniformly and consistently 
asserted and applied these fundamental principles through 
his whole course of decisions upon the United States Bench. 
If I shall refer with more detail to decisions in which he 
lias asserted the power and supremacy of the United States 
Government, it is because the other side of his system, and 
the cases in which he sustains the State authoi'ity and the 
civil rights of pei'sons, are fully set forth in the accompany- 
ing volume. 

Judge Field's opinions concerning the essential and liis- 
torical nationality of the United States; the nature of the 
Union ; its relations with the States; the indestructible chai-- 
acter,both of the Union and the States, as an organization 
which not only exists under the Constitution, but existed 
prior to it, may be learned from the cases of Lane Co. vs. 
Oregon and Texas vs. White, in 7 Wallace. In these cases 
the Court was called upon to examine more profoundly and 
to declare more correctl}", than had ever before been done 
by Marshall, Story, Taney, and the whole line of former 
judges, the true nature of the relation.s of the United States 
and of the States Avith each other, and of the peculiar or- 
ganization resulting from their union. The Court for the 
first time found a solid basis, historical as well as logical, on 
which to rest the inherent existence and supremacy of the 
United States. Placing the Union upon a sure foundation, 
it also defined the status of the States, and asserted their 
necessary existence and peculiar rights in a manner no less 
clear and certain. The Court by these judgments estab- 
lished the United States and the States upon exactly the 
same footing; whatever weakens the one weakens the other; 
whoever denies the historic origin of the one, denies the 
same of the other. As we have in this theory the greatest 
security for the nation, we have also the greatest security 
for the several States. The opinions in these two cases 



Avofc delivered by Mi", .lustice Cliase, and were coiicun-cd 
ill l)_v .Iii(I;>-e Field and otliei's wlio cM)iii[)os(.'d tlu' majority 
iviiderini;- tiie decision. It is undoubtedly true, as a general 
rule, that eoncurring judges are not necessarily required 
to agree witli all of llie views expressed in tlie prevailing 
opinion of tlie Court. Wliile tliey must agree with its eou- 
clusions, there may be modes of reasoning, lV)rms of argu- 
ment, personal notions of the one writing tlie opinion, to 
wliich the concurring judges do not wholly assent. There 
are, however, special reasons why this ordinary rule can- 
not be applied to these two cases. They were test cases, 
most carefully considered by the Court, and intended by 
the majority to put the questions involved, forever at rest. 
This was especially true of Texas vs. AVhite. Again, the 
conclusions reached, and concurred in by the majority, are 
such as necessarily required an assent to the whole course 
of reasoning contained in the opinions. It would be im- 
possible to reject any substantial position taken l)y the 
Chief Justice, or any particular argument in his chain of 
reasoning, without at the same time rejecting the conclu- 
sions which he finally reaches, and wdiich form the basis 
of the judgment. To this I may add the testimony of 
Chief Justice Chase himself. In a letter written to me 
shortly after the decision of Texas vs. White was an- 
nounced, he says, concerning the opinion in that case : 

"■ That opinion was very much discussed, especially by 
the judges who concurred in it, and may, I thiidv, be re- 
garded as a tolerably correct expression of the views of 
the Court as to the nature of the National Union, of its re- 
lations to the States, and of the principles of re-organiza- 
tion of States disorganized by rebelhon, and of the restor- 
ation of national relations interrupted by civil war." 

It niay, therefore, be considered as certain that these 
two cases express the dehberate convictions and opinions 
held by Judge Field; and in no subsequent case has he 
expressed any sentiment, or adopted any course of reason- 
ing, or announced any doctrine, in opposition to these 
most important and protound judgments. 



54 

The same high view eoiiceniiiiii' tlie t^upi'onuicy of the 
United States Goveninient, within the field of its dele- 
gated powers, and concerning tlie hmitations placed upon 
State action, is exhibited in his interpretation of the XlVth 
Amendment — that crowning and consummate provision of 
the organic hiw. So far from tlie absurd charge that he 
is hostile to this amendment being true, it was Judge Field 
himself who first, in a dissenting opinion, gave to the 
amendment that broad, liberal, and universal construction 
which renders it, as was intended, the most perfect safe- 
guard against the encroachments of State governmental 
action upon the private civil rights of all persons. The 
first cases involving the amendment which came before 
the Court were the Slaughter-House Cases. — (16 Wall., 
36.) The majority of the Court, in an opinion by Mr. Jus- 
tire Miller,* jjut upon the amendment a most narrow in- 
terpretation, which would utterly destroy its value as a 
protection of private civil rights. The}^ adopted as their 
fundamental proposition the strange notion that the amend- 
ment was confined in its operations to negroes. They held 
that tl)e Xlllth, XlVth, and XVth Amendments wei-e 
steps in the accomplishment of one final object — the abo- 
lition of slavery and the perfect . freedom and protection 
of the negro race. They declared that, although ex- 
pressed in general terms, the primary design and main 
purport of the XlVth Amendment was to confirm the 
status of negroes as citizens, and to prevent the encroach- 
ments of State laws which would discrimituxte against 
them. This was all the mearung which the majority could 
find in provisions designed to protect all persons against 

* This opinion is the more strange and inconsistent since Judge Miller 
has always advocated views which tend to break down almost all limi- 
tations upon the general government, and to make the legislative powers 
of Congress almost universal. While maintaining a general theory con- 
cerning the nationality of the U. S., which I believe to be on the whole 
correct, he is inclined to ignore or weaken the restrictions which the 
Constitution has everywhere placed upon the exercise of full national 
powers by Congress. 



unjvist jictioii of the local government. Mr. Justice Mil- 
ler went so far, while commenting upon tlie last and most 
sweeping provision— " nor shall any State deny to anv 
person within its jarisdiction the e(iual protection of tlie 
laws " — as to say of it: " We douht very rnnch whethei- 
any action of a State, not directed hy way of disci'imina- 
tion against the negroes as a class, or on account of their 
race, will ever he held to come within the province of this 
provision." Four judges dissented from this narrow con- 
struction, in a most powerful opinion written hy Judge 
Field. He asserted in the strongest terms the universality 
of the amendment, its application to all classes of persons. 
He denied that its operation was confined to the negroes. 
It afforded the same protection to aU persons against local 
oppressive laws; it secured to all persons the equal pro- 
tection of the laws. In a word, the XlVth Amendment 
was enacted to supply a great want, which had existed 
since the foundation of the government. "While the 
States wei-e from the outset forbidden to pass ex post facto 
laws, or bills of attainder, or laws impairing the obligation 
of contracts, the}^ might in many other ways invade the 
rights of citizens, and the national courts could grant no 
relief. 

This beneficial amendment throws the protection of the 
national courts around ihe lives, liberty, and proj)erty of 
all persons, and enables tlie supreme tribunal to annul all 
oppressive laws which the partisanship of local courts 
might perhaps sustain. To limit the meaning of the 
amendment, to confine its effect to one portion of the in- 
liabitants, and that a comparatively small part, was to de- 
feat its most important design, and to destro}^ its highest 
usefulness. The construction then put upon it by the ma- 
jority simply emasculated the amendment, Tlie broad, 
lil)eral, and national interpretation of Judge Field and 
the minority, is clearly correct; and to it he has steadily 
adhered in every subsequent case coming before the 
Sup)reme Court, or before himself in the Circuit Court, 
down to and including the somewhat famous " Chinese 



Queue Case," in which he directly held that certain 
local legislation was annulled by the amendment. Judge 
Field's position in this matter should not be misunder- 
stood. In the recent cases which have attracted so 
much attention, involving the validity of certain legis- 
lation of Congress purporting to be based upon the 
XIV th Amendment, he does not deny the validity nor 
the efficacy of that amendment; on the contrary, he re- 
iterates all the views which he had before expressed. He 
dissents from the Court solely with respect to the legisla- 
tion which Congress may properly enact for the purpose of 
carrying it into eflect. He declares that no affirmative leg- 
islation is either necessary or appropriate. Like the clauses 
forbidding States to pass ex post f ado laws, or bills of at- 
tainder, or laws impairing the obligation of contracts, the 
prohil>itions of the amendment execute themselves. They 
are addressed to the States in their corporate capacity, and 
not to individuals, and they annul all State legislation 
which conflicts with their provisions. He regards the 
sacred principles of local self-government as lying at the 
very foundation of our institutions. The theory of the Con- 
stitution is, that all affirmative control over and legisla- 
tion concerning private rights and relations, are coniided 
exclusively to the individual States, and are not delegated 
to Congress. The XlVth Amendment has enabled the 
national courts to exercise a judicial scrutiny over this 
State legislation, to determine its validity, and to pronounce 
it null and void when discriminating or oppressive or vio- 
lative of private civil rights; but the amendment cannot 
be regarded as revolutionizing the entire theory of our 
political organization, and as transferring Xa Congress the 
power of legislating with respect to private and personal 
rights. This is, in outline, the position maintained by Judge 
Field. It is entirely consistent with his doctrines concerning 
the supremacy of the General Government; it is, in fact, a 
part of one rounded, complete, and consistent system. 

The supremacy of the General Government within tlie 
scope of those powers delegated to it by the (\)nstitution, 



1 

is also niaiiitniiuMl in the most positive maiiiicr l>y n lono- 
scries of decisions, in nianv of which lie (lelix'ci'cd the 
opinion of the Court, and in the ollu-rs conciiri'ed, dealing 
with foi-eign cinnnierce, inter-state commerce, the ohjects 
of State taxation, and other analogous suhjects of eon- 
gi-essional legislation. In numerous decisions covering 
every aspeet of tlie question, and in language as pointed 
and emphatic as any that was ever used by Marshall or 
Story, he has affirmed the supreme and exclusive power 
of Congress over all branches and kinds of foreign or in- 
ter-state commerce which are national in their character, 
or requiring a uniform rule, the invalidity of State statutes 
which either directly or indirectly interfere with the free- 
dom of inter-state traffic, or with the equality of civil 
rights belonging to citizens of other States. T)\(\ my time 
and space permit, it would be both interesting and instruc- 
tive to quote some passages from the opinions of this class; 
but I must be content with collecting and arranging the 
most important cases in the foot-note.* Here, also, it should 
l)e noticed that Judge Field has been uniformly consistent, 
even when the Court has departed from its estabhshed 
principles, as it did in some of the so-called Granger Cases 
involving the validity of State statutes which interfered 
with and prescribed regulations atfecting tlie inter-state 
transportation of goods and |>ersons, and the inter-state 
traffic in goods. t 

*See the following cases in which he delivered the opinion of the 
Court : Welton vs. Missouri, 1 Otto, 275 ; Sherlock vs. Ailing, 3 Otto, 99 ; 
The Daniel Ball, 10 Wall., 357, 365; State Tax on Foreign Bondholders, 
15 Wall., 300 ; County of Mobile vs. Kimball, 12 Otto. 691 ; Tiernau vs. 
Rinker, Ibid., 123 ; In re Ah Fong, 3 Sawyer, 144, 151 ; and also the follow- 
ing, among numerous others, in which he concurred : Case of State Freight 
Tax, 15 AVall., 232; Chy Lung vs. Freeman, 2 Otto, 275; Eailroad vs. 
Husen, 5 Otto, 465 ; Henderson vs. Mayor of X. Y., 2 Otto, 259. 

fMunn vs. Illinois, 4 Otto, 113, 1.35; Chicago, &c., K. E. vs. Iowa, 4 
Otto, 155, 163 ; Peik vs. Chicago, &c., R. R., 4 Otto, 164, 177. Judge Field's 
dissent in this group of cases is a noble protest against State legislation 
invading the rights of private property, and as a course of reasoning is. 
as it seems to me, unanswerable. 
K 



58 

One of the most distinguishing features of Judge Field's 
character as an interpreter of the Constitution, and of his 
work as a member of the iSTational Judiciary, appears in 
the steady, uniform, and energetic manner in which he 
lias enforced all the safeguards which the Constitution and 
its amendments have thrown around the pei'sonal rights 
of life, liberty, and property, by inhibiting all legislative 
or executive action, either of the federal or of the State 
governments, which would encroach upon those rights. 
He has clearly perceived that the primary object of all 
constitutional government is the protection of those sacred 
rights and immunities which constitute " civil liberty," 
and that a government which can only be maintained by 
ignoring or violating those rights is not worth preserving 
and maintaining. On the other hand, he has perceived, 
with an equally clear vision, that our own national organi- 
zation, our political institutions, the integrity of our Union, 
and the autonomy of the States, could be upheld, pre- 
served, and maintained by means of a strict and faithful 
adherence to the restrictions and limitations embodied in 
the Bill of Rights; that the preservation of the Union, 
the suppression of insurrection, and the ultimate triumph 
of the principles of freedom and equality, did not require 
any abandonment of, or interference with, local self-gov- 
ernment, or the civil liberties of the private citizen. This 
element of his character and work is fully displayed in the 
ac(;ompanying volume and needs no further description. 

At the outbreak of tlie civil war a species of political 
insanity seems to have seized upon large numbers of other- 
wise thoughtful and intelligent men. The power of the 
President to disregard all the legal securities of life, lib- 
erty, and property, to enforce martial law against civilians, 
to establish military courts in States removed from the 
scene of war, and subject persons there to military trials 
and punishments, was asserted in the most positive man- 
ner ; any denial or even doubt of the authority was 
treated as disloyalty. Tt is simply amazing to look back 



59 

to that period and to recall the opinions which were tlieu 
pnhhcly maintained.* The whole subject, in fact, pre- 
sented two aspects, namely: the eifect of suspending; the 
writ of habeas corpus, and the power to enforce martial 
law. It was asserted that the authority given to suspend 
the writ of habeas corpus during insurrection or invasion 
included the authority to disregard all the safeguards 
which the Bill of Rights has tlirown around life, liberty, 
and property, and drew after it, as a necessary conse- 
quence, the power to make military arrests of citizens, 
and subject them to military trials and punishments. Even 
at the veiy outset a warning voice was raised against these 
monstrous conclusions. The venerable Horace Binney, 
the acknowledged leader of the American Bar, the asso- 
ciate and friend of all the greatest statesmen and judges 
of our earlier period, who, as a scholar in the Philadelphia 
High School, walked in pubhc procession at the adoption 
of the United States Constitution, and then first felt, as he 
Vv^rote to me, that he belonged to a nation, to something 
he could call his country, — Horace Binney wrote and pub- 
lished three essays in which he examined the subject of 
suspending the w-rit of habeas corpus in a most exhaustive 
manner, and showed, by a course of reasoning which 
amounts to absolute demonstration, that suspending the 
writ does not in the least aflect the authority over arrests ; 
that it does not enable Congress to allow, nor the Ex- 
ecutive to make, arrests without legal cause or in an arbi- 
trary manner; that it does not legalize seizures otherwise 
arbitrary, nor give any greater authority than that of de- 
taining suspected persons in custody whom the govern- 
ment would else be obliged to bring to a speedy trial or to 
release on bail. 

*A large volume was written and published called "The War Powers 
under the Constitution," a book maintaining sentiments suited, perhaps, 
to the autocratic despotism of Russia in its struggle with the Nihilists, 
but which are simply the negation of every fundamental principle of 
civil liberty and of private rights contained in our own political institu- 
tions. 



60 

Tliese conclusions thus reached by Horace Binney were 
adopted by the Supreme Court in the Milhgan Case (4 
Wall., 2, 115), in the decision of which Judge Field 
concurred. The claim to exercise martial law against 
civilians was still more terrible. A most elaborate and 
exhaustive examination of tlie power to enforce martial 
law under or Ijy virtue of the common law was made 
a few years ago by Lord Chief Justice Cockburn, one 
of the ablest chiefs who ever sat on the English Bench, 
and whose recent death is a great loss to the English ad- 
ministration of justice,* After a review of the prece- 
dents, ancient and modern, set forth in the wonderfully 
clear manner for which he was so pre-eminently dis- 
tinguished, the Chief Justice reached the conclusion that 
under the common law there is no authority to enforce 
the martial law in any part of the British Empire where 
the common law prevails; in other words, the common 
law knows no such attribute of executive power. This 
conclusion the Supreme Court also adopted in the Milh- 
gan case. There can be no martial law in the United 
States except as an instrument and means of cai'rying 
on actual warfare, of conducting actual hostilities in re- 
gions occupied by the opposing armies. This doctrine 
received the hearty approval of Judge Field, and has 
l)een on every occasion maintained by him. See es- 
pecially his dissenting opinion in Beckvvith vs. Bean, (8 
Otto, 285-306. ) 

I must not pursue this analysis into any further detail. 
I have shown that his system of constitutional construc- 
tion is consistent and complete; that it recognizes and 
maintains alike the lawful supremacy and exclusive au- 
thority of the General Government within the scope of 
powers delegated to it, and the just rights of individual 

* Charge of the Lord Chief Justice of England in the ease of tlie Queen 
vs. Nelson and Brand, London, 1867, a case growing out of the negro 
insurrection, or rather tumult, in Jamaica, and the conduct of the Gov- 
ernor. 



61 

States; tlifit it preserves unimpaired all the restrictions 
and limitations imposed upon the governmental action 
both of the States and of the nation; that it jealously 
guards the private and civil rights and immunities of per- 
sons; and tiiat it respects and keeps in force the sacred 
principles (-•f local self-government, and of civil and con- 
stitutional liberty, which underlie all our political institu- 
tions. From his opiinons alone, a complete and consistent 
system of constitutional law might be composed, in whicli 
the American citizen would find a perfect text-book of 
political science, an exhaustive treatise upon the institu- 
tions of his country. 

In conclusion, the proposition is, in my opinion, estab- 
lished by the foregoing sketch, that by his creative force 
as a state legislator, as a state judge, and, above all, as a 
meml)er of the Supreme ISTational Tribunal, Judge Fiekl 
has, as much as any jurist of the present generation, im- 
pressed himself upon the jurisprudence of his country. 



Note. 

The articles in this volume are a compilation made by 
political and personal friends of Judge Field. The greater 
part of them were prepared in 1880. Those added since 
have been furnished principally by members of the Bar of 
California. The whole are now published at the request 
of gentlemen of that State, where it is believed they will 
be favorably received from the number of important pub- 
lic questions considered in them, and the ability with 
which the questions are treated. 

No reference is made to the action of the associates of 
Judge Field on the Bench or in the Electoral Commission 
further than is necessary to illustrate and explain his con- 
duct and positions. It is only with his career that the 
volume is concerned, and its limits would not allow any 
extended statement of their views and acts. 

Chauncey F. Black. 
Samuel B. Smith. 

New Yokk, July, 1881. 



STEPHEN J. FIELD 



LEGISLATOR, STATE JUDGE, AND JUDGE OF THE 
SUPREME COURT OF THE UNFTED STATES. 



JUDGE FIELD AS A LEGISLATOR. 



TIk' Legi-ilation. secured by him for tlir Protection of 3Iitier.'< in fJieir 
Mining Claims. 



From tlir Sun Jose D.VII.Y Hkrai.D [(Mifoniia \ of Xnrrmlirr 18,1879. 



"The long judicial service of our distinguished fellow- 
citizen, embracing nearly six years in the Suj^reme Court 
of the State, and more than sixteen in the Supreme Court 
of the United States, has been marked by most al)le opin- 
ions on many great leading questions. This fact has very 
naturally connected his name in the public mind mainly 
with those questions, and few are aware of other, and even 
more important services, rendered our State l)y him, as a 
legislator, in tlie early days of the State's history. He was 
a member of the second legislature which was chosen in 
the Fall of 1850, and represented the then county of Yuba, 
which at that time included also what are now Sierra and 
Xevada counties. 

" The first legislature had eiiacted a general system of 
laws, sm-li as are indispensable to the government .of any 
community. It had done uuthing, however, toward the pro- 
tection or regulation of that great interest whicli had gath- 
ered together from every State in tlie Union, and from 
every nation of the world, the restless and sometimes tur- 
bulent ])<)[)u]atio]i of the CaHfornia of tliirty years ago. The 



gold seekers were left to jostle each otliei-, and to settle their 
disputes as best they might. The ownership of the mines 
was held by some to be in the United States, and by others 
to be in the State, while all were alike extremely jealous 
of any assertion of power over them by the government 
of either. It was evident that the miners could not long 
be left to fight among themselves over questions of priority 
or extent of claims, while it was equally evident that legis- 
lation on the sul)ject must be in accord with generally ac- 
cepted opinion or it would be a dead letter. The situation 
was a grave one, and it demanded statesmanlike treatment. 
To do nothing was to leave the peace of the State at the 
mercy of those whose fierce thirst for gold might outrun 
their respect for fair dealing. Honest misunderstandings 
as to facts were oftenest settled by immediate appeal to 
brute force. The world has probably never seen a sim- 
ilar spectacle — that of extensive gold-fields suddenly peo- 
pled by masses of men from all States and countries, re- 
strained by no law, and not agreed as to whence the laws 
ought to emanate by which they would consent to be bound. 
As in all other emergencies, the one man was there to 
bring forward the saving measure. Stephen J. Field solved 
the ditficult problem. He saw that the rude society around 
him would shatter to fragments any system in which its 
own strong will and native common sense were not taken 
into account. The miners had, in each camp, held meetings, 
and enacted rules and regulations by which they agreed to 
be governed in that place. These had reference to the ex- 
tent of each claim in the given locahty , the acts necessary to 
constitute location or appropriation of the same, and the 
amount of work which should entitle the claimant to con- 
tinued possession. The State could not safely attempt to 
substitute for these various rules any of a more general 
and uniform character. This fact was the basis of the 
measure brought forward by Judge Field in the Legislature 
of 1851, and by him urged to final success. He did not 
leave the miners to be a law unto themselves, but held 



tlu'in to tlio laws tlicy had inade ior tlioiiisclvcs. His 
plan was siiii[>l(' and at tlu" same tinic tliorouii-Ji and sound. 
It was that the rules made hy the miiu'i-s sliould he eii- 
foreed l)y the Statt'. What tliey had (h'cjared to l»e fair [.lay 
should hetlie law of the land, and should LCoveni the eourts 
in tlieir deeisions in niininii' dis[»utes. Here is the lan- 
guaii'e : 

'■ In actions respecting ' Mining CUaims ' proof shall be 
admitted of the customs, usages, or regulations established 
and in force at the bar, or diggings, embracing such claims, 
and such customs, usages, or regulations, when not in con- 
Hi et with the constitution and laws of this State, shall 
govern the decision of the action." 

" The principle contained in the fifty-two words above 
C|Uoted was adopted in other mining regions of the coun- 
try, and finally by the Congress of the United States. The 
author of it has seen its wisdom vindicated l)y more than 
twenty-eight years of experience, and for it the people of 
the State and of Kevada should ever hold him in grateful 
remembrance. When they think of him only as a judge 
deciding upon the administration of laws framed by others, 
let them be reminded that in a single sentence he laid the 
foundation of our mining system so firmly that it has not 
been, and cannot be, disturbed." 



At the time the above legislation was had actions for 
mining claims, the mines being in the lands of the 
United States, were usually brought upon an alleged forci- 
ble or unlawful detainer. The rule adopted by the enact- 
ment in question, originally applicable only in actions be- 
fore local magistrates, was soon extended to actions for 
mining claims in all courts, and, as stated above, now pre- 
vails in all the mining regions of the country. 

Many years afterwards Mr. Field, in giving the opinion 
of the Supreme Court of the United States in an import- 



ant case before it, spoke of the usages and regulations of 
miners, to which this legislation gave the force of law, as 
follows : 

"The discovery of gold in California was followed, as is well known, 
by an immense immigration into the State, which increased its popula- 
tion within three or I'onr years from a few thousand to several hundred 
thousand. The lands in which the precious metals were found belonged 
to tile United States, and were unsurveyed, and not open, by law, to 
occnpatiou and settlement. Little was known of them fiirtlier than that 
they were situated in the Sierra Nevada Mountains. Into these moun- 
tains the emigrants in vast numbers jienetrated, occupying the ravines, 
gulches, and canons, and probing the earth in all directions for the 
precious metals. Wherever they went they carried with them that love 
of order and system and of fair dealing which are the prominent charac- 
teristics of our people. In every district which they occupied they 
framed certain rules for their government, by which the extent of ground 
they coukl severally hold for mining was designated, their possessory 
right to such ground secured and enforced, and contests between them 
either avoided or determined. These rules bore a marked similarity, 
varying in the several districts only according to the extent and char- 
acter of the mines, distinct provisions being made for different kinds of 
mining, such as placer mining, (quartz mining, and mining in drifts or 
tunnels. They all recognized discovery followed by appropriation as the 
foundation of the possessor's title, and development by working as the 
condition of its retention. And they were so framed as to secure to all 
comers, within practicable limits, absolute equality of right and privi- 
lege in working the mines. Nothing but such equality would have been 
tolerated by the miners, who were emphatically the law-makers, as re- 
spects mining, upon the public lands in the State. The tirst appropriator 
was everywhere held to have, within certain well-detined limits, a better 
riglit than others to the claims taken up ; and in all controversies, except 
as against the government, he was regarded as the original owner, from 
whom title was to be traced. But the mines coirld not be worked with- 
out water. Without water the gold would remain forever buried in the 
earth or rock. To carry water to mining localities, when they were not 
on the banks of a stream or lake, became, therefore, an important and 
necessary business in carrying on raining. Here, also, the first appro- 
priator of water to be conveyed to such localities for mining or other 
beneficial purposes, Avas recognized as having, to the extent of actual 
use, the better right. The doctrines of the common law respecting the 
rights of riparian owners were not considered as applicable, or only in a 
very limited degree, to the condition of miners in the mountains. The 
waters of rivers and lakes were consequently carried great distances in 
ditches and flumes, constructed with vast labor and enormous expendi- 
tures of money, along the sides of mountains and through canons and 



raviiK-s to supplv ((.mnuuiitics cii-iMjicd in milling-, as well as I'or a-rriful- 
turisls and ordinary consunii.tion. Xunurous n <;iilations were adopted, 
or assunud to exist iVoui llirir ol.vious Justness, lor tlu^ seenrity of these 
ditclics and liuines, and the protect ion of li-lits to water, not only l)c- 
Iwccn difr.Tent approjniatois, but l)ct\vren tiicni and the liohiers of 
mining ehiiins. These ri'iiuhilions and eustoius wvw appeah'd to in eon- 
ti-oversies in tlie State courts, and received their sanction ; and properties 
to the vahie of many millions rested ni»(m them. For eighteen years, 
from 1S48 to 1866, the regulations ami customs of miners, as enforced 
and moulded by the courts, and sanctioned by the legislation of the 
State, constituted the law governing property in mines and in water on 
the pnl)lic mineral lands. Until 1866 no legislation was had looking to 
a sale of the mineral lands. The policy of the country had previously 
been, as shown by the legislation of Congress, to exempt such lands from 
sale. In that year tlie act, the ninth section of which we have quoted, 
was passed.* In the tirst section it declared that the mineral lands of 
the United States were free and open to exploration and occupation by 
citizens of the United States, and those who had declared their intention 
to become citizens, subject to such regulations as might be prescribed by 
law and the local customs or rules of miners in the several mining dis- 
tricts, so far as the same were not in conflict with the laws of the United 
States. In other sections it provided for acquiring the title of the United 
States to claims in veins or lodes of quartz bearing gold, silver, cinnabar, 
or copper, the possessory right to which had been previously acquired 
under the customs and rules of miners. In no provision of the act was 
any intention manifested to interfere with the possessory rights pre- 
viously acquired, or which might be afterwards acquired ; the intention 
expressed was to secure them by a patent from the government. The 
Senator of Nevada,t the author of the act, in advocating its passage in 
the Senate, spoke in high praise of the regulations and customs of miners, 
and portrayed in glowing language the wonderful results that had fol- 
lowed tlie system of free mining which had prevailed with the tacit 
consent of the government. The Legislature of California, he said, had 
wisely declared that the rules and regulations of miners should be re- 
ceived in evidence in all controversies respecting mining claims, and 
when not in conflict with the constitution or laws of the State or of the 
United States, should govern their determination ; and a series of wise 
judicial decisions had moulded these regulations and customs into 'a 
comprehensive system of common law, embracing not only mining law, 
properly speaking, but also regulating the use of water for mining pur- 
poses.' The miner's law, he added, was a part of the miner's nature. He 
had made it, and he trusted it and obeyed it. He had given the honest 

* The act of July 26, 1866, " granting the right of way to ditch and 
canal owners over the public lands, and for other purposes." — (14 U. ,S. 
Statutes, 251.) 

t Hon. Wm. M. Stewart. 



toil of his life to discover wealth, which, when found, was protected by- 
no higher law than that enacted by himself under the implied sanction 
of a just and generous government. And the act proposed continued 
the system of free mining, holding the mineral lands open to exjiloration 
and occupation subject to legislation by Congress and to local rules. It 
merely recognized the obligation of the government to respect private 
rights which had grown up under its tacit consent and aijproval. It pro- 
posed no new system, but sanctioned, regulated, and confirmed a system 
already established, to which the people were attached." — ( Jennison vs. 
Kirk, 98 U. S. Eep., 457.) 



JUDGE FIELD AS A LEGLSLATOR. 



The Legislation secured by him for the Exeiufption from Forced Sale 
for Debts of the Tools ami other Personal Property of the Debtor. 



From the Sail Jnsp DAILY Herald of November 21, 1879. 



" 'L-cifit Wednesday we gave a portion of Judge Field's 
record as a legislator in this State, showing that his ser- 
vices have heen of great value and that he is one of the 
most thorough statesmen claimed by this coast. We re- 
ferred particularly to the mining law, and we now call 
attention to another most beneficial law of which Judge 
Field was the author. We refer to the law exempting 
from sale for debt (other than the purchase money, or to 
satisfy a mortgage thereon) certain property. The law 
reads as follows : 

" The following property shall be exempt from execu- 
tion, except as herein otherwise specially provided : 

" 1. Chairs, tables, desks, and books, to the value of one 
hundred dollars, belonging to the judgment debtor ; 

" 2. Necessary household, table, and kitchen furniture, 
belonging to the judgment debtor, including stove, stove- 



9 

pipe, and stove furniture, \vearin<>: apparel, beds, beddino:, 
and bedsteads, and })rovisi()ns actually provided for indi- 
vidual or family use suifieient for one month ; 

•• -■'). The farming utensils, or implements of husbandry, 
o\' the judgment debtor ; also two oxen, or two horses, or 
two mules, and their harness, and one cart or wagon, and 
food for such oxen, horses, or nudes for one month ; 

'• 4, The tools and implements of a mechanic necessary 
to carry on his trade, the instruments and chests of a sur- 
geon, physician, surveyor, and dentist necessary to the ex- 
ercise of their professions, witli their profes.sional librar}^, 
and the law libraries of an attorney or counsellor ; 

'' •'). The tent and i'urniture, including a talde, camp 
stools, bed and bedding, of a miner ; also his i-ocker, 
sliovels, spades, wheelbarrows, pumps, and other instru- 
ments used in mining, with provisions necessary for his 
support for one month ; 

" 6. Two oxen, or two horses, or two mules, and their 
harness, and one cart or ^vagon, by the use of which a 
cartman, teamster, or other laborer habitually earns his 
living ; and food for such oxen, horses, or mules for one 
month ; and a horse, harness, and vehicle used by a phy- 
sician or surgeon in making his professional visits ; 

" 7. All arms and accoutrements required by law to be 
kept by any person. But no article mentioned in this 
section shall be exempt from an execution issued on a 
judgment recovered for its price, or upon a mortgage 
there(»n/' * 

" This was far in advance of any similar provision in 
other States, and was a bold and novel proposition. Thou- 
sands have enjoyed its benefits without being aware that 
its author was Stephen J. Field, The wisdom of it is 
manifest when we consider that it merely preserves to the 
unfortunate debtor the instrumentalities for future etibrt. 
A rapacious creditor might feel entitled to "the uttermost 
fartliing'' in the possession of the num indebted to him, 

* These provisions are contained in section 219 of the act of 1851, 
regulating proceedings in civil cases, which is one of the many original 
sections in that act drawn by .Judge Field. Until this legislation there 
was no exemption at all of personal property in California ; and no exemp- 
tion equally extensive is found in the previous legislation of any State 
of the Union. 



10 

But this law interposes and says to the debtor : " You shall 
have the right to reserve a hundred dollars' worth of 
property, your necessary houseliold furniture, wearhig a[)- 
parel, and a month's provisions ; and then besides this, if 
you are a fanner, you shall he allowed to retain all your 
farniing implements, and als(j a wagon and a pair of ani- 
mals, with one month's food for them. This will enahk; 
you to go to work and repair your fortunes. The law will 
not see you disabled." To tlie mechanic and miner this 
humane law says : " J3e of good cheer. You shall keep 
the tools with which you ply your calling. These shall 
l)e regarded as a part of }'our own physical system ; as 
well might your hands be cut oh" as your tools taken from 
them." To the workingman using a cart and horse, as so 
many laborers do, this law, which has stood for twenty- 
eight years on our statute b()ok, says : "Yon nmst pay 
your debts, but need not sell the good horse and cart by 
which you are aided to feed your children. Kay,, you may 
keep a wagon and two horses, if you are so fortunate as 
to have them. These make you independent, and the 
sheritf shall not take them." Others were also protected. 
The instruments of the surgeon and surveyor, the library 
of the physician and the lawyer, an<l the horse and buggy 
of the i»hysician, were all declared exempt from forced 
sale. This law has never been complained of or tampered 
with, and remains a monument to the wisdom, humanity, 
and thoughtfulness of its author, -Judge Field, who, in 
framing it, made application, for the benefit of the debtor, 
of the truth uttered by that harshest of creditors — Shy- 
lock — when he said : 

You t;ik(.' inv life 



Wheu you do take the nieaii.s 
Whereby I live. 

These measures — the mining law, and the law exempt- 
ing certain property from forced sale under execution — 
are but a snnxll portion of the valuable legislative work of 
Judge Field, but we bring them to public attention at this 



11 

time Jis funiisliiiis: liigb evidence of the pnictical wisdom 
i^*^ one wliose name \vc read ot'tcnest of late years in con- 
nection with ."puru'ial (l(H'isi(»ns, Imt wliose friends could, if 
thev ehoso, claim lor him a itlace amoni>; statesmen aslii_a;h 
as that he ()ecu[)ies anioni;' jurists. His conservatisn\ has 
never made him the enemy of wholesome ehani!,-es, and 
his proii'ressiven ess has never ma;]e him the supporter of 
any of the isms of the times. He has hi'cn as great a 
student of men and of attairs as of hooks,'' 



JUDGE FIELD AS A LEGISLATOR. 

General Legislation secured by him. 



From the San Jose Daily Herald of Deconber 26, 1879, 

" We have already referred to legislation concerning 
mining customs and regulations, and exemptions of cer- 
tain pei-sona.l property from forced sale, of which Judge 
Field was the author. We desire to make some further 
reference to his brief but most lionoral)le, and we might 
truly say brilliant legislative career, 

" His service was only for a single session — -that of 1851 
— and yet whilst there he left his mark permanently upon 
the laws of the State, He was appointed on the Judiciary 
Conmdttee ; and as a member of that Committee he pre- 
pared and reported a l)ill concerning the Courts of Justice 
and Judicial Officers of the State, wdiich was passed. The 
immense labor, difficulty, and responsibility attending the 
preparation of this bill will be seen, when it is stated that 



12 

by it the whole Judiciary System of the State was reorgan- 
ized, and the jurisdiction, powers, and duties of the several 
courts, and of all Judicial officers, were designated and de- 
lined. And it may be here added that the act of 1853 
with the same title— which was the original act carefully 
revised, and introduced into the Legislature by Mr. Sam- 
uel B. Smith of Sutter County — was also prepared by him. 

" He also prepared and introduced bills to regulate pro- 
ceedings in civil and criminal cases. These bills were taken 
from the proposed codes of New York as reported by 
the Commissioners of that State ; but the great labor in- 
volved nevertheless in their preparation may be estimated 
from the fact, that in order to adapt them to the peculiar 
condition of the new State and the requirements of its 
constitution, as well as to his own views of what would 
constitute the best practice, he redrafted over three hun- 
dred sections, and added over one hundred new ones. 
Among the new sections are those to which we have al- 
ready referred relating to actions respecting mining claims 
and the admission in evidence of the customs and regula- 
tions of miners, and respecting exemptions from forced 
sale of personal property. These bills became laws and 
with some amendments — found necessary during a period 
of nearly twenty -two years, and particularly from the con- 
stitutional amendments of 1862 — remained on the statute 
book until the adoption of the recent codes, in which they 
are substantially embodied. 

" He also drew bills creating the counties of Nevada and 
Klamath and gave those counties their names. Many 
counties also sought legislation correcting or changing 
their boundary lines, and several bills on the subject being 
referred to him he reported a general l)ill, dividing the 
State into counties and establishing the Seats of Justice 
therein, which was passed. Judge Field drew the char- 
ters of the cities of Marysville, Nevada, and Monterey — 
the latter being reported as a substitute for the bill intro- 
duced by the member of Monterey County. The prin- 



13 

cipal provisions of these ehartcrs have been adopted in 
subsequent acts ci'cating municipal incorporations. 

" lie also (h'al'ted llie :u-i coiiccniing divorces Avhich was 
reported iVoui the Judic-iarv Coumiittee as a substitute for 
a bill on the same subji'ctintro(Uice(l by Mr. desse D. Can-. 

'' Et luis ahvays been a source of great satislaction to bini 
tbat he gave most earnest support to the Homestead Ex- 
emption Bill That bill was introduced by Mr. Gavin I). 
Hall, then of El Dorado, now of San Francisco, and was 
assailed violently as tending to obstruct the collection of 
debts. An effort to reduce the amount of the Homestead 
Exemption from $5,000 to |8,000 was stoutly and success- 
fully resisted by Judge Field, Judge McCorkle, and the 
author of the bill. 

" The session of 1851 was the most important in the his- 
tory of the State. It was the tirst one held after the ad- 
mission of California into the Union ; and some of the 
best tind)ers of the new governmental structure are of the 
handiwork of Judge Field. His labors there, as in every 
other station to which he has been called, exhibit great 
devotion to the public service, untiring industry, and a 
high sense of the responsibility of a public officer. Many 
bad bills were defeated through his influence and many de- 
fective ones amended by his suggestions. He was seldom 
absent from his seat ; he carefully watched all measures ; 
and there were few debates in which he did not participate. 
Such is the universal testimony of all the survivors of the 
legislative body of 1851, and its truth is estabhshed by the 
dournals of the Assembly and the papers of the time. 

" We are specially indebted for the materials of this ar- 
ticle to information derived from Judge McCorkle, Hon. 
Samuel A. Merritt, and Hon. Jesse I). Carr, who were 
members of tlie Legislature with Judge Field." 



In addition to the above, Judge Field Avas the author of 
the act concerning attorneys and counsellors-at-law, in 



u 

which he hieorporatiMl provisions reiidcrini:' it iinjiossihlc 
tor any judge to disbar an attorney in an arbitrary man- 
ner without notice of the charges against him, and giving 
him an opportunity to he heard upon them ; of tlie act 
concerning county recorders, in wliich the present system 
of keeping the records of conveyances was adopted ; and of 
the act concerning county sherifiis, in which their duties 
in the execution of process and in keeping prisoners were 
declared and defined. 



STEPHEN J. FIELD 



JUDGE OF THE SUPREME COURT OF CALIFORNIA. 



In 1S,')7 \h\ Field was fleeted Judii'e of the Supreme 
(\)urt of C^uliforuia for six years, eoiiiineiK'ing January 1st, 
1858, There were two eandidates besides himself before 
the people for the position, and 93,000 votes were polled. 
Tie received a majority of 80,000 over each of his op- 
ponents, and 17,000 over them both together.* 

In September, 1857, the Chief Justice of tlie Court, 
Hugh L. Murray, died, and one of the associate judges 
was appointed to till the vacancy. This left the balance 
of the associate judge's term of service, which extended 
to the following January, unoccupied, and Mr. Field was 
appointed by the governor of the State — a political oppo- 
nent — to fill it. He accepted the appointment, and took his 
seat on the bench October l:Uh, 1857. He held the office 
of associate judge until the resignation of Chief Justice 
Terry in Septendier, 1859, when he l)ecanie Chief Justice. 

* The exact vote Avns as follows : 

For S.J. Field 55,216 

For Nathaniel Bennett 1*^,944 

For J. P. Ralston 19,068 

Total vote 93,228 

Majority of Field over Bennett 36,272 

Majority of Field over Ealston 36,148 

Majority of Field over both 17.204 



16 

In 1808 Mr. Field wns appointed b}' President Lincoln 
an Associate Justice of the Supreme Court of the United 
States. The appointn:ient was made upon the unanimous 
recommendation of the congressional delegation of the 
Pacific C'Oast, tlien consisting of four Senators and four 
Members of the House, of whom five were Democrats 
and three Republicans ; all of them were Union men. His 
commission was dated Marcli 10th, 1863, but as he desired, 
prior to leaving the State bench, to dispose of the cases 
which had been argued before him, he did not take the 
oath of office until the 20th of Ma}^ following. He sent in 
his resignation to the governor to take elieet on tliat day. 

Judge Joseph Gr. Baldwin, who had l)een his associate 
on the bench for three years, hearing of the resignation, 
gave expression to his estimate of Mr. Field's judicial 
career in the following communication to the Sacramento 
Union, which appeared in that paper May 6th, 1863. Judge 
Baldwin was himself distinguished alike for his legal 
and literary attainments, and was warndy attaclied to his 
friend. 



JUDGE FIELD. 

" The resignation by Judge Field of the oifice of Chief 
Justice of the Supreme Court of California, to take efi'ect 
on the 20th instant, has been announced. By this event 
the State has been deprived of the ablest jurist who ever 
presided over her courts. Judge Field came to California 
from Xew York in 1849, and settled in Marysville. He 
immediately commenced the practice of law, and rose at 
once to a high position at the local bar, and upon the or- 
ganization of the Supreme Court soon commanded a place 
in the first class of the counsel practicing in t])at forum. 
For many years, and until his promotion to the bench, liis 
practice was as extensive, and probably as renumerative, 
as that of any lawyer in the State. He served one or two 
sessions in the JjCgislature, and the State is indebted to 



17 

liini lor very niaiiy oi" the laws whicli constitute the body 
of her leg-islatioii.* In 1857 he was nominated for Judg-e 
of the Sui)renie Court for a full term, and in October of 
the same year was appointed by Govenor Johnson to fill 
the unexpired term of Justice Heydenfeldt, resigned. He 
immediately entered upon the office, and has continued 
ever since to discharge its duties. Recently, as the reader 
knows, he was appointed by the unanimous request of our 
delegation in Congress, to a seat upon the Bench of the 
Supreme Court of the United States, and was confirmed, 
without opposition, by the Senate. 

"Like most men who have risen to distinction' in the 
United States, Judge Field commenced his career without 
the advantages of wealth, aiid he prosecuted it without the 
factitious aids of family influence or patronage. lie had 
the advantage, however— which served him Ijetter than 
wealth or family influence — of an accomplished education, 
and careful study and mental discipHne. He brought to 
the practice of his profession a mind stored with profes- 
sional learning, and embeUished wdth rare scholarly attain- 
ments. He was distinguished at the bar for his fidelity to 
his clients, for untiring industry, great care and accuracy 
in the preparation of his cases, uncommon legal acumen, 
and extraordinary solidity of judgment. As an adviser, 
no man had more the confidence of his clients,for he trus- 
ted nothing to chance or accident when certainty could be 
attained, and felt his way cautiously to his conclusions, 
wdiich, once reached, rested upon sure foundations, and to 
which he clung with remarkable pertinacity. Judges soon 
learned to repose confidence in his opinions, and he always 
gave them the strongest proofs of the weight justly due to 
his conclusions. 

'' When he came to the bench, from various unavoidable 
causes the calendar was crowded with cases involving im- 
inense interests, the most important questions, and various 
and pecular litigation. Cahfornia was then, as now, in the 

* He was in the Legislature only one session. 



18 

development of her multiform physical resources. The 
judges were as much pioneers of law as the people of settle- 
ment. To be sure something had been done, but much 
had yet to be accomplished ; and something, too, had to be 
undone of that which had been done in the feverish and an- 
omalous period that had preceded. It is safe to say that, even 
in the experience of new countries hastily settled by hetero- 
geneous crowds of strangers from all countries, no such ex- 
ample of legal or judicial difhculties was ever before pre- 
sented as has been illustrated in the history of California. 
There was no general or common source of jurisprudence. 
Law was to l)e administered almost without a standard. 
There was the civil law, as adulterated or moditied by Mex- 
ican provincialisms, usages, and habitudes, for a great part 
of the litigation ; and tliere was the common law for another 
part, but lohit tJi((t iraft was to be decided from the con- 
flicting decisions of any number of courts in America and 
England, and the various and diverse considerations of 
policy arising from local and other facts. And then, con- 
tracts made elsewhere, and some of them in semi-civilized 
countries, had to be interpreted here. Besides all which 
may be added that large and important interests peculiar 
to this State existed — mines, ditches, etc. — for which the 
courts were compelled to frame the law, and make a system 
out of what was little better than chaos. 

" When, in addition, it is considered that an unprece- 
dented number of contracts, and an amount of business 
without parallel, had been made and done in hot haste, 
with the utmost carelessness ; that legislation was accom- 
plished in the same way, and presented the crudest and 
most incongruous materials for construction ; that the 
whole scheme and organization of the government, and 
the relation of the departments to each other, had to l:>e 
adjusted by judicial construction — it may well be con- 
ceived what task even the ablest jurist would take upon 
himself when he assumed this office. It is no small com- 
pliment to say that Judge Field entei'ed upon the duties 



11) 

of this i;Te;it trust wilh his usiuil /ciil and ciicru-v, and that 
he kMives the olHce not only with ^-I'catly inciH'ascd repu- 
tation, l)nt tliat lie has raised the character of the jurispru- 
dence of the State, lie has more than any otlu'r man n-iven 
tone, consistency, and system to our Judicatui'e, and laid 
hroad and deep the foandation ol'our civil and criminal law. 
The land titles of the State — the most important and per- 
manent of the interests of a great commonwealth — have 
received from his hand their permanent protection, and 
this alone should entitle him to the lasting gratitude of 
tlie har and the people. 

" His opinions, whether, for tlieir learning, logic, or dic- 
tion, will compare favorahly, in the judgment of some of 
our hest lawyers, with those of any judge upon the Su- 
preme Bench of the Union. It is true what he has accom- 
])lished has been done with lal)or ; ])ut this is so much 
more to his praise, for such work was not to be hastily done, 
and it was proper that the time spent in perfecting the 
work should bear some little proportion to the time it 
should last. We know it has been said of Judge Field 
that he is too much of a' case lawyer,' and not suthciently 
Ijroad and comprehensive in liis views. This criticism is 
not just. It is true he is reverent of authority, and likes 
to be sustained by precedent ; lait an examination of his 
opinions will show that, so far from being a timid copyist, 
or the passive slave of authority, his rulings rest upon 
clearly defined principles and strong common sense. 

" He retires from office without a stain opon his ermine. 
Millions might have been amassed by venality. He retires 
as poor as when he entered — owing nothing and owning 
little, except the title to the respect of good men, which ma- 
lignant mendacity can not wrest fi'om a public officer who 
has deserved, by a long and useful career, the grateful ap- 
preciation of his fellow-citizens. We think that we may 
safely predict that, in his new place, Justice Field will fulfill 
the sanguine expectations of his friends." 

San Francisco, May 1, 18(18. '^- ^^- ^- 



20 

It will be observed that in his conimunicatioTi Judge 
Baldwin })laces great stress upon the action of Judge Field 
in the settlement of land titles. Their unsettled condition 
when he went on the bench was the occasion of much 
litigation as well as animosity between persons who other- 
wise would have been on amicable terms. This condi- 
tion arose principally from three causes: 1st, the immense 
extent and indefinite boundaries of grants from the former 
Mexican government ; 2d, the occupation by settlers of 
lands of the United States in advance of measures by the 
government for their sale; and 3d, the claim of California 
to own the gold and silver found in all lands in the State. 

The following is a brief statement as to these causes of 
disturbance and their disposition : 

1st. As to the Mexican f/nnits : 

" Wlien Cahfornia was acquired, the population was 
small and widely scattered. To encourage colonization, 
grants of land in large quantities, varying from one to 
eleven leagues, had been made to settlers by the Mexican 
government. Only small tracts were subjected to cultiva- 
tion. The greater part of the land was used for grazing 
cattle, which were kept in immense herds. The grants 
were sometimes of tracts with defined boundaries, and 
sometimes of places by name, but more frequently of 
specified quantities lying within boundaries embracing a 
greater amount. By the Mexican law, it was incumbent 
upon the magistrates of the vicinage to put the grantees 
in possession of the land granted* to them ; and for that 
purpose to measure off and segregate the quantity desig- 
nated. Owing to the sparseness of the population there 
was little danger of disputes as to boundaries, and this seg- 
regation in the majority of cases had been neglected be- 
fore our acquisition of the country. From the size of the 
grants and the want of definite boundaries, arose nearly 
all the difficulties and complaints of the early settlers. 
Upon the discovery of gold, immigrants from all parts of 



21 

the \V(irl(l i-usIumI into tlie country, increasing the popula- 
tion in one or two years from a few thousand to several 
liundivd thousand. A lai'i^-e iiuiid)er crossed the plains 
froni thi' Western States, and many of them sought for 
farming lands upon whirh to settle. To them a grant of 
land leagues in extent seemed a monstrous wi'ong to which 
they could not he reconciled. The vagui-ness, also, in 
manv instances, of the houndaries of the land claimed 
ga\e force and a[)i)arent reason to their ohjet-tions. They 
accordingly settled upon what they found unenclosed or 
uncultivated, without much regard to the claims of the 
Mexican grantees. If the land upon which they thus set- 
tled was within the tracts foi-merly occupied hy the grant- 
ees with their herds, they denied the validity of grants so 
large in extent. Tf the houndaries designated enclosed a 
greater amount than that specitied in the grants, they un- 
dertook to locate the supposed surplus. Thus, if a grant 
were of three leagues within boundaries endjracing four, 
the immigrant would undertake to appropriate to himself 
a portion of what he deemed the surplus ; forgetting that 
other immigrants miglit do the same thing, each claiming 
that wdiat he had taken was a portion of such surplus, 
until the grantee was deprived of his entire property. 

" AVhen the Supreuie Court of California was brought to 
consider the questions to wdiich this condition of things 
gave rise, it assumed at the outset that the obligations of 
the treaty with Mexico were to be respected and enforced. 
This treaty had stipulated for the protection of all rights 
of property of the citizens of the ceded country; and 
that stipulation endiraced inchoate and equitable rights, 
as well as those wdiich w^ere perfect. It was not for that 
Court to question the wisdom or policy of Mexico in mak- 
ing grants of such large portions of lier domain, or of 
the Uiiited States in stipulating for their protection. As 
Judge Grier said in his opinion in the case of The United 
States vs. Sutherland, in the llHh of Howard, the rhetoric 
whicli denounced the grants as enormous monopolies and 



priiicedouis luiii-lit liave a jii.st influence when urged to 
those who had a right to give or refuse; but as the United 
States had bound themselves bj a treaty to acknowledge 
and protect all hmia-Jide titles granted by the previous gov- 
ernment, the court had no discretion to enlarge or contract 
such grants to suit its own sense of propriety or to defeat 
just claims, however extensive, by stringent technical 
rules of construction to whicli tliey were not originally 
subjected." * 

■'■" In the Fossatt case this obligation of oui" government to protect the 
rights of Mexican grantees in California is stated in brilliant and power- 
ful language by Judge Black. Referring to the land claimed by one 
Justo Larios, a Mexican grantee, he said : " The land we are claiming 
never belonged to this government. It was private property under a 
grant made long before our war with Mexico. When the treaty of Gua- 
dalupe Hidalgo came to be ratified — at the very moment when Mexico 
was feeling the sorest pressure that could be applied to her by the force 
of our armies and the diplomacy of our statesmen — she utterly refused to 
cede her public property in California unless upon the express condition 
that all private titles should be faithfully protected. We made the prom- 
ise. The gentleman sits on this bench (Judge Cliftbrd) who was then 
our Minister there. With his own right hand he pledged the sacred 
honor of this nation that the United States would stand over the grant- 
ees of Mexico and keep them safe in the enjoyment of their property. 
The pledge was not only that the government itself would abstain from 
all disturbance of them, but that every blow aimed at their rights, come 
from what quarter it might, should be caught upon the broad shield of 
our blessed Constitution and our equal laws. It was by this assurance 
thus solemnly given that we won the reluctant consent of Mexico to part 
with California. It gave us a domain of more than imperial grandeur. 
Besides the vast extent of that country, it has natural advantages such as 
no other can boast. Its valleys teem with unbounded fertility, and its 
mountains are filled with inexhaustible treasures of mineral wealth. The 
navigable rivers run hundreds of miles into the interior, and the coast is 
indented with the most capacious harbors in the world. The climate 
is more healthful than any other on the globe : men can labor longer 
with less thtigue. The vegetation is more vigorous and the products 
more abundant ; the face of the earth is more varied, and the sky bends 

over it with a lovelier blue. That was what we gained by the 

promise to protect men in the situation of Justo Larios, their children, 
their alienees, and others claiming through them. It is impossible that 
in this nation i\\ey will ever be plundered in the face of such a pledge."— 
(2 Wallace, 703.) 



2^1 

'• Actiiiii- oil tlic [•i-iiiciplc (li:it fidi'Iity to a natioirs 
pIcMlu-o is a sacred diilv, and tliat Justice is tlic lii^licst in- 
terest of tiie country, J udge 1^'ii'ld eiuleaxored, \\lieiu'\el' 
the occasion [.i-esented itself, and his associates co-operated 
with him, to protect the Mexican <;-i'anlees. Their li'rants 
contained a stipulation lor the possession of tlie lands 
ii-ranted, inasmuch as they were suhjeet to the condi- 
tions of cultivation and oeeupaiicy, and a faihire to com- 
ply witli the conditions was considered hy the trihiinals of 
the United States as a most material circumstance in tlie 
determination of tlie riii'ht of the grantees to a (u)nfiriua- 
tion of tlieii- claims. He held, therefore, with the concur- 
rence of his associates, that the grantees, wliether they 
were to he considered as liaving a legal or an equitahle 
right to the lands, were entitled to their possession until 
the action of the government ujxni their claims, and, there- 
fore, that the}' c()uld recover in ejectment."' If the grant 
w^as a mere float, or of a quantity to l»e selected within 
vague undefinahle boundaries like mountains, as in the 
case of the Mariposa grant, no line on such mountains, from 
their base to their summit, being designated, he held that 
the grantee was to be confined in his recovery to the tract 
actually used and occupied hy him, until the government 
intervened and determined that the quantity granted to 
him should l)e elsewdiere located. But if the grant was 
not a mere float, but was of land within clearly defined 
boundaries, wdiich embraced a greater quantity tlian that 
specified in it, with a provision that the surplus should be 
measured of by the government, he held that until such 
measurement the grantee was a tenant in common with 
the government and could hold the wdiole as against 
mere intruders and trespassers. As he said in one of 
his opinions, speaking for the court, until such measure- 
ment no individual could complain, much less could he 
be permitted to determine in advance, that any particu- 
lar locality would tall w-ithin the supposed surplus, and 
thereby justify its forcible seizure and detention by him- 



24 

self. " If one person could in this way appropriate a par- 
ticular parcel to himself, all persons could do so ; and 
thus the grantee, who is the donee of the government, 
would l»e stripped of its bounty for the benetit of those 
who were not in its contemplation and were never in- 
tended to be the recipients of its favors." * 

These views have since met with general assent in 
California and have been approved by the Supreme Court 
of the United States.! But at that time they gave otience 
to a large class, and the judges were accused of acting in 
the interest of monopolists and land-grabbers, when in 
fact they wei-e only extending to the grantees the protec- 
tion which our treaty with Mexico stipulated. 

2^/. As to the occap/itioi}. bij settlers of l/imls of tJir United 
St /tcs' In adcance of measures by the f/ocern merit fir t/ieir sale. 

'' The position of a large portion of the people of Cali- 
fornia, previous to 1860, with respect to the public lands, 
was unprecedented. The discovery of gold had brought, 
as stated, an immense immigration to the country. The 
slopes of the Sierra Xevada were traversed by many of 
the immigrants in search of the [irecious metals, and by 
others the tillable land was occupied for agricultural pur- 
poses. The title was in the United States, and until 1853 
there had been no legislation authorizing a settlement 
upon any of the public lands, and for some years after- 
wards the public surveys were extended over only a por- 
tion of them. Conflicting possessory claims naturally 
arose, and the question was presented as to the law ap- 
plicable to them. The Legislature in 1851 had provided 
that in suits before magistrates for mining claims, evidence 
of the customs, usages, and regulations of miners in their 
vicinage should be admissible, and, wdien not in conflict 

* Cornwall vs. Culver, 16 Cal., 429, and Mahoney vs. Van Winkle, 21 
Id., 576-580. 

+ Van Reynegau vs. Bolton, 95 U. S.. 33. 



25 

with tilt' coiistitiitioii :iu(l laws of tlio stato, slionlrl o;ov- 
rrii tlu'ir (Iccisioiu and tlir ]»riiici|>lc thus apin'oved was 
soon aiiiiTuMl ill ac'tioiis for iiiiniiiii: claiiiis in all courts, 
111 those cases it was considered that the first possessor or 
aiipropnator of the claim had tlu' hetter riii'ht as a<;'aiiist 
all parties exce[>t tlu' u-o\'c'niiiient , and that he, and per- 
sons claiiiiiiiL!,- under him, were eiitilled to protection. This 
principle received the entire concurrence of the court, and 
was a[)[)lie(l, in its fullest extent, for the protection of all 
possessory rights on tlie puldic lands. Thus, in Coryell vs, 
Cain, Judge Fiehl said, sp.'aking for the court : 

"It is umlontitedl}' true, as a general rule, tliat the clainiant in eject- 
ment must recover upon the strength of his own title, and not upon the 
weakness of his adversary's, and that it is a sulticient answer to his action 
to show title out of him and in a third i)arty. But this general rule has, 
in this State, from the anomalous condition of things arising from the 
peculiar character of the mining and landed interests of the country, 
been to a certain extent qualified and limited. The larger portion of the 
mining lands within the State belong to the United States, and yet that 
fact has never been considered as a sufficient answer to the prosecution of 
actions for the recovery of portions of such lands. Actions for the posses- 
sion of mining claims, water privileges, and the like, situated upon the 
public lauds, are matters of daily occurrence, and if the proof of the para- 
mount title of the government would operate to defeat them, confusion 
and ruin would be the result. In determining controversies between 
parties thus situated, this court proceeds upon the presumption of a 
grant from the government to the first appropriator of mines, water 
privileges, and the like. This presumption, which would have no place 
for consideration as against the assertion of the rights of the superior pro- 
prietor, is held absolute in all those controversies. And with the public 
lands which are not mineral lands, the title, as l)etween citizens of the 
State, where neither connects himself with the government, is considered 
as vested in the first possessor, and to proceed from him, " — (16 Cal., p. 
572.) 

The doctrine thus laid down was of incalculahle heneiit 
to all occupants of the puhlic lands of the United States 
in advance of measures by the government for their sale. 
It preserved peace among them, and gave them assurance 
that they would he protected in their possessions until 
the general government should interfere and assert its 
superior title. 



26 

od. As to fJic chdiK of CdJifondit to otini the f/old <iiitl silrer 
found III. (dl hiiaU in the Stote. 

" The difficulties attendant upon any attempt to give 
security to landed possessions in the State^ arising from 
the circumstances narrated, were increased by an opin- 
ion, which for some time prevailed, that the precious 
metals, gold and silver, found in various parts of the 
country, whether in public or private lands, Ijclonged to 
the State by virtue of her sovereignty. To this opinion a 
decision of the Supreme Court of the State, made in 185-3, 
gave great potency. In Hicks vs. Bell, decided that year, 
the court came to that conclusion, relying upon certain 
decisions of the courts of England recognizing the right 
of the Crown to those metals. The principal case on the 
subject was that of The Queen vs. The Earl of Xorthum- 
berland, reported in Plowden. The counsel of the Queen 
in that case gave, according to our present notions, some 
very fanciful reasons for the conclusion reached, though 
none were stated in the judgment of the court. The Su- 
preme Court of the State, without considering the force of 
the reasons assigned in that ca-ie adopted its conclusion ; 
and as the gold and silver in the British realm are there 
held to belong to the Crown, it was concluded, on the hy- 
pothesis that the United States have no municipal sover- 
eignty within the limits of the State, that they must be- 
long in this country to the State. The State, therefore, 
said the court, " has solely the right to authorize them " 
(the mines of gold and silver) "to be worked ; to pass 
laws for their regulation ; to license miners ; and to affix 
such terms and conditions as she may deem proper to the 
freedom of their use. In her legislation upon this subject 
she has established the policy of permitting all who desire 
it to work her mines of gold and silver, with or without 
conditions; and she has wisel}^ provided that their conffict- 
ing claims shall be adjudicated by the rules and customs 
which may be established by bodies of them working in the 
same vicinity."— (3 Cal., 227.) 



"Tlio minors soon ^tusixmI the full scope of tlic (Iceision 
thus rc-ndcrc'cK and the lands of jirivati' i.ro[ii'ic'toi-s were 
invaded \ov the purpose of mininii- as freely as the pnhhc 
land-. It was the pcdiev of the State to eneouraj^'e the 
(k'velopinent of the mini's, and no u'reater hititnde in ex- 
ploration eonld he desired than was thus saiu-titMied In' the 
highest trihunal of the State, 

" It was not long before a cry came tip from private pro- 
prietors against this invasion of their possessions. There 
was gold in limited (luantitifs scattered tlu'ough large and 
valuable districts, where the land was held in private |)ro- 
prietorship, and under the doctrine announced the whole 
might be invaded, and, for all useful purposes, destroyed, no 
matter how little remunerative the product of the mining. 
The entry might be made at all seasons, whether the hmd 
was tmder cuhivation or not, and without reference to its 
con<htion, whether eovei'ed with orchards, vineyards, gar- 
dens, or otherwise. It was evident that under such a state 
of things tlie ownei" of mineral land would never be se- 
cure in his possessions, llis title would be of little value 
if there was a right of invasion in the whole wn>rld. In 
fact, the land would be to him poor and valueless just in 
proportion to the actual richness and abundance of its 
products. 

" The Court was, therefore, eompeUed to put some hmi- 
tation upon the enjoyment by the citizen of this asserted 
risrht of the State, Accordingly, within two years after- 
wards, it held that although the State was the owner of 
the gold and silver found in the lands o^ private indi- 
viduals as well as in the public lands, " yet to authorize 
an invasion of private property in order to enjoy a public 
franchise would require more specific legislation than any 
yet resorted to," — (Stoakes vs. Barrett, 5 Cah. oO.) 

" The spirit to invade other people's lands, to which the 
original decision gave increased force, could not, however, 
be as easily repressed as it was raised in the crowd of ad- 
venturers who filled the mining regions. And when Judge 



28 

Field went on the l)onch, in 1857, the right to dig for the 
precious metals on the hinds of private individuals, under an 
assumed license of the State, was still asserted." But after- 
wards, in the case of Biddle Boggs vs. The Merced Mining 
Company* the whole suhject was ehihorately examined, 
and the doctrine repudiated. Judge Field wrote the ojiin- 
ion of the Court, which attracted much attention. The 
fallaciousness of the reasoning upon which the doctrine 
rested was so clearly shown, that the doctrine has never 
been reasserted since. 

" At a later day the court took up the doctrine, that the 
precious metals belonged to the State by virtue of her 
sovereignty, and exploded it. The question arose in 
Moore vs. Smaw, and Fremont vs. Flower, which were 
heard together.f In disposing of it, -Judge Field, speak- 
ing for the court, used the following language respecting 
the sovereignty of the State : 

" It is undoubtedly true that the Uuited States held certain rights of 
sovereignty over the territory which is now embraced within the limits 
of California, only in trust for the future State, and that such rights at 
once vested in the new State upon her admission into the Union. But 
the ownership of the precious metals found in public or private lands was 
not one of those rights. Such ownership stands in no different relation 
to the sovereignty of a State than tliat of any other property which is 
the subject of barter and sale. Sovereignty is a term used to express the 
supreme political authority of an independent State or Nation. What- 
ever rights are essential to the existence of this authority are rights of 
sovereignty. Thus the right to declare war, to make treaties of peace, 
to levy taxes, to take private property for public uses, termed the right 
of eminent domain, are all rights of sovereignty, for they are rights es- 
sential to the existence of supreme political authority. In this country, 
this authority is vested in the people, and is exercised through the joint 
action of their federal and State governments. To the federal govern- 
ment is delegated the exercise of certain rights or powers of sovereignty ; 
and with respect to sovereignty, rights and powers are synonymous 
terms ; and the exercise of all other rights of sovereignty, except as ex- 
pressly prohibited, is reserved to the people of the respective States, or 
vested by them in their local governments. When we say, therefore, that 
a State of the Union is sovereign, we only mean that she possesses su- 
preme political authority, except as to those matters over which such au- 

* 14 Cal. Rep., 373-380. 1 17 Cal. Rep , 200. 



29 

tlioriiv isdclc.uatctl (o tlie leiler.xl goviTniiicnt, or prohihifcd to tlio States; 
in otlu r words, tliat she possesses all tlic rij^hts and powers essential to 
the (>xistenee of an inih'penrtent political orj^anization, except as they are 
witlulrawn by the provisions of the Constitution of the United States. 
To the existence of this political authority of the State— this qualified 
sovereignty, or any i)art of it— the ownership of the minerals of <:;old and 
silver found within her limits is in no way essential. The minerals do not 
differ from the f^reat mass of iiroperty, the ownership of which maybe 
in the United States, or in individuals, without aflCecting in any respect 
the political jurisdiction of the State. They may be aniuired by the 
State, as any other property may be, but when thus aecjuired she will 
liold tliem in the same manner that individual i)roi)rietors hold their 
proi)erty, and by the same right : by the right of ownership, and not l)y 
any right of sovereignty." 

" The court also held that, although under the Mexican law 
the gold find silver found in land did not pass with a grant 
of the land, a diflerent result followed, under the common 
law, when a conveyance of land was made by an individual 
or by the government. By such a conveyance, without 
a special reservation, everything passed in any way con- 
nected with the land, forming a portion of its soil or fixed 
to its surface, 

" The doctrine of the right of the State by virtue of her 
sovereignty to the mines of gold and silver within her 
limits perished with this decision. It was never afterwards 
seriously asserted." * 



* The opinions of the court in the cases cited above— that of Biddle- 
vs. Merced Mining Company, and that of Fremont vs. Flower — were the 
subject of an article in the American Law Register of June, 1862, by 
Mr. Emory Washburn, Professor of Law in Harvard University. As the 
two cases grew out of the Mariposa grant, the Professor treated them as 
substantially one case, and concluded his article in the following 
language : 

" It would be pleasant, if this article had not l)ecome so extended, to 
dwell for a moment upon the reflections that are at once awakened, as one 
contemplates the various phases of this celebrated case, upon the silent 
yet resistless majesty of the law, so long as its robes of office are worn by 
men of learning, uprightness, and unsuspected moral courage, acting 
within their sphere. Here has been a controversy involving, it is 
said, millions in value, as well as many considerations of great hardship, 
exciting not a little local as well as personal feeling and animosity. It has 
been passed upon by three men, personally without power, the organs 
and officers of the law, and there the contest ends, for the law has spoken, 
and we are. after all, a law-abiding people." 



80 



Patents for Land by the United States. 

Patents for land by the United States, particnlarly those 
issued upon a contirmation of grants in Cahfornia of the 
former Mexican government, were the suhjeet of repeated 
consideration by the Supreme Court of the State while 
Judge Field w^as on its Ijench. In many opinions written 
by him, the operation of such patents was elaborately and 
exhaustively treated, and the law l)y which they were to be 
construed, their efl'ect in giving quiet and security to the 
patentees in the possession of their lands, tlie extent to 
which they are conclusive against attacks at law, and the 
circumstances under which they can be assailed in equity, 
were stated with a clearness and precision, which left noth- 
ing in doubt and closed the door to much vexatious and 
harassing litigation touching the ownership of tlie lands 
covered by them. The doctrines advanced by him have 
never been successfully controverted, and they have been 
approved by the Supreme Court of the United States.* 

Municipal Corporations. 

Municipal corporations, their powers, rights, and o])liga- 
tions,w^ere also the subject of consideration in numerous 
opinions of the Supreme Court of California written by 
Judge Field. Judge Dillon, in his recent work on Muni- 
cipal Corporations, speaks of these opinions in terms of 
the highest praise, makes frequent citations from them, 
and recognizes the fact that the views contained in them 
have been concurred in very generally by the courts of 
other States. 

In a series of adjudications in \^■hat are known in CnV}- 
fornia as tlie " City Slip Cases," wliere property of the city of 

* Moore vs. Wilkinson, 13 Cal., 478; Biddle Boggs vs. Merced Mining 
Co., 14 Id., 361-366 ; Stark vs. Barrett, 15 Id., 362 ; Mott vs. Sniitli, 
16 Id., 534 ; Teschemacker vs. Thompson, 18 Id., 20 ; Leese vs. Clark, Id., 
565 ; Same case a second time before the court in 20 Cal., 411 ; Estrada 
vs. Murphy, 19 Id., 268. See also Beard vs. Federy, 3d Wallace, 478. 



81 

San Fi-ancisco was sold uiHlcra void ordinanco and tlio pro- 
ceeds a{)i»r<)i»riatcd loi- nuinicipal purposes, it was held, that 
no title pa-^sed.and liiai under the rliai'ter of tlireity (which 
recpiircd sales oi' its pro[)erty to l»e made, by an ordinance 
adopted for that purpose, atter advertisement of the time 
and place and terms of sale) the appropriation of tlie pro- 
ceeds did not operate to ratify the sales, while at the same 
time it imposed U}»on the city the hability to pay hack the. 
money to the purchasers. It woukl seem plain that if the 
mere appropriation of the proceeds obtained under a void 
ordinance could li'ive vahdity to a sale of the city's prop- 
erty, the restraints imposed by the legislature upon the 
action of the city would he easily defeated. Referring to 
the principles stated in these decisions, Judge Dillon says 
that they " are vindicated with characteristic clearness and 
striking logical force, in able and interesting opinions of 
Mr. Chief Justice Field." * 

Among other ol)jections against a recovery of the 
money paid by the purchasers upon the void sale, it was 
urged, that the common council of the city w^as forbidden 
hy its charter to create or permit to he created any debt 
or liabilities, which in the aggregate, with all former debts 
or liabilities, should exceed $50,000 over and above its 
annual revenue, unless specially authorized 1)y an ordi- 
nance providing the ways and means for the payment of 
the annual interest and of the principal, and such ordinance 
were approved b}' a vote of the peo|)le. To this objection 
Judge Field, in speaking for tlie court, thus replied : 

" We are clear that the provision refers only to the acts or contracts 
of the city, and not to liabilities Avhich the law may cast upon her. It 
was intended to restrain extravagant expenditures of the public moneys ; 
not to justify the detention of the property of her citizens which she 
may have unlawfully obtained. The plaintiff claims that the city has 
got his money without any consideration — by mistake — and has appro- 

* McCracken vs. The City of San Francisco, 16 Cal., 591 ; Grogan vs. San 
Francisco, 18 Id., 607 ; Pimental vs. San Francisco, 21 Id., .359. See also 
Argenti vs. City of San Francisco, 16 Cal., 282, and Zottman vs. San 
Francisco. 20 Cal.. 96. 



82 

priated it to municipal purposes, and he insists that she is responsible to 
hiiu for it, because the law — not her contract or permission — renders her 
liable. Her liability, in this respect, is independent of the restraining 
clauses of the charter; it arises from the obligation to do justice — to re- 
store what belongs to others — which rests upon all persons, whether nat- 
ural or artificial. And it ma}* well be doubted whether it would be com- 
petent for the legislature to exempt the city, any more than private indi- 
viduals, from liability under circumstances of this character. Suppose, 
for example, that the city should recover judgment against an individual 
for $100,000, and collect the money upon execution, and upon appeal the 
judgment should be reversed; would it be pretended that the money 
could not afterwards be recovered? Could the city defend against the 
claim for restitution upon the pretence that she was already indebted 
over $50,000? Could she, to use the language of counsel, owe herself out 
of liabiliiy ? Suppose, again, an individual should pay the taxes upon 
his property, in ignorance that they had already been paid by his agent, 
could the city retain the aniount thus paid by mistake ? Could she 
plead her previous indebtedness as an excuse for the detention of the 
money to which she had no legal or equitable right? Suppose, again, the 
city should neglect to keep the streets in repair, and an individual should 
be injured in consequence — should break his leg or be otherwise crippled — 
could she allege her insolvency against his claim for damages? Would 
her pecuniary condition be an answer for the neglect of every duty, legal 
and moral? If this were so, she would be the most irresponsible corpo- 
ration on earth, and her treasury would be, in nu^ny instances, but a 
receptacle for others' property without possibility of restitution. The 
truth is, there is no such exemption from liability on her part. The same 
obligations to do justice rest upon her as rest upon individuals. She 
cannot appropriate to her own use the property of others, and screen 
herself from responsibility upon any pretence of excessive indebtedness. 
The law casts upon her the legal liability from the moral duty to make 
restitution. Admitting that the charter restricts her power to incur lia- 
bilities by her own acts, it still leaves her liable according to the 

general law. The restriction can, in any event, only apply to liabilities 
dependent for their creation upon the volition of the common council, 
and hence does not include liabilities arising from torts, or trespasses, or 
mistakes." — (McCracken vs. The City of San Francisco, 16 Cal., 631-t2.) 

MoRTUAdES. 

While Judge Field was on the bench the law of mort- 
gages in California was settled in conformity with the 
common understanding of men. Opinions of the court, 
written by him, made that the rule of law which was be- 
fore the rule of equity, namely : that a mortgage is not a 



conveyance, but a pledge only, redeemable by compliance 
with the condition on which it was given. Herman, the 
author oi' a recent and most learned work on mortgages, 
expresses the opinion that '• Xo maii in this country has 
done as nnich in developing souinl [)rinc![)l('s in regard to 
mortgages — that tliey are mere hy[);)thccatii)ns — as Judge 
Fiekl. To his labors on the Supreme Ben"h of CaHlbrnia, 
and in the United States Supreme Court, have been in- 
debted the courts of every State where tiie doctrine is 
maintained ; and his California opinions are cited as lead- 
ing and decisive of the true principle."* 

Other Cases. 

Xumerous other cases besides those to which reference 
has been made, presenting a great variety of questions, 
some of general and public interest, and others of local 
concern, were before the court whilst Judge Field was 
on the bench, in which he gave the opinion of the court. 
It would extend this sketch beyond the design of the writer 
to give even a syllabus of the cases. They related to 
the claim of the State to iive hundred thousand acres of 
land donated by the 8th section of the Act of Congress of 
Sept. 4tli, 1841, for purposes of internal improvement, 
and to its right to dispose of the lands in advance of the 
pubhc surveys ; — to contracts of the State for the support 
and labor of its convicts ; — to the power of the courts to 
compel by mandamus otlicers of the State to do their 
duty ; — to the coniiicting rights of miners to the use of 
the water of streams in the mountains for the purpose of 
mining ; — to the right of the wife to a share of the com- 
munity property under the law of Mexico and the law of 
Cahfornia ;— to the title of the City of San Francisco to 
lands within her limits as successor of a former Mexican 
Pueblo and under the grant of beach and water lots bv the 



* McMillau vs. Richards, 9 Cal., 365 ; Xagle vs. :sraoy, 9 Id., i26 : John- 
son vs. Sherman, lo Id., :i87 ; (Toodenow vs. Ewer. 16 Id., 461. 



:i4 

State ill 1851 ; — to tlie construction of wills ; — to the dis- 
tinction between mortgages and deeds of trust ; and to a 
great number of other subjects. A citation is given in 
the note of several of these cases.* 

Two cases not included among these deserve special 
notice; — in one of which — Ex-pa rte Newman, (9 Cal.,502,) 
relating to a law making Sunday a clay of rest — Judge 
Field wrote a dissenting opinion; and in the other^Prrriy 
vs. Washburn, (20 Gal., 318,) asserting the non-receiva- 
bility of legal-tender notes for State taxes — he wrote the 
opinion of the court. 

A Sunday Law, or a Law for a Day of Rest. 

In Ex-parte Xewinan the question arose as to the validity 
of a law of California, which provided that no person 
should keep open on Sunday " any store, warehouse, me- 
clianic shop, workshop, l)anking-li()use, manufacturing 
estabhshment, or otlier business house, for business pur- 
poses ;" or " sell or expose for sale any goods, wares, or 
merchandise" on that day ; and that a violation of these 
provisions should be deemed a misdemeanor for which a 
penalty was prescribed. The law excepted from its opera- 
tion the keepers of hotels, inns, taverns, restaurants, board- 
ing liouses, and livery stables, and the retailers of drugs 
and medicines, and certain articles of fresh food and ar- 
ticles required in cases of necessity or charity. Xor did 
the law apply to such manufacturing or other business 
establishments as were necessarily required to be kept in 
continual operation to accomplish their Inisiness. 

* Butte Canal and Ditch Co. vs. Vaughan, 11 Cal., 153 ; Baker vs. Baker, 

13 Id., 87 ; Pierce vs. Robinson, 13 Id., 116 ; Blanding vs. Burr, 13 Id., 343 ; 
Scott vs. Ward, 13 Id., 458 ; Koch vs. Briggs, 14 Id., 256; Noe vs. Card, 

14 Id., 577 ; Pixley vs. Huggins, 15 Id., 128; Norris vs. Harris, 15 Id., 226 ; 
State of California vs.McCauley, 15 Id., 429; Holliday vs. Frisbie, 15 Id., 
630; McCauley vs. Brooks, 16 Id., 12; Koppikus vs. State Capital Com- 
missioners, 16 Id., 249 ; Brumagim vs. Tillinghast, 16 Id., 267; Doll vs. 
Meador, 16 Id., 295 ; Halleck vs. Mixer, 16 Id., 575. 



85 

This law the iiiajoritv of the court decided to ])e in con- 
flict witli the chiuse of tlie eoiistiliitioii which ih'clared 
that •• the free exercise and enjoynient o!' rcH^ious [>ro- 
fession and worship, without disiTimination or profefence," 
shoukl forever l)e allowed in the State, holding- that in 
enforcinij: cessation from Lihoi- on a day held sacred hy a 
religious sect was a disi-riniination in favoi- of that sect. 
The court also decided that the Legislature hatl no right 
to forl)id the pursuit of a lawful occupation on one day of 
a week, any more than it liad a right to forbid it altogether, 
under the clause of the constitution declaring that all 
men have the inalienahle right of " ac(|uiring, possessing, 
and protecting property." 

From this decision Judge Field dissented, holding that 
the law only prescribed a day of rest from certain occu- 
pations as a rule of civil conduct, and had nothing to do 
with religious profession or worship, to which it did not 
allude in any of its provisions. And he thus vindicated 
its wisdom : 

"la its enactment the Legislature lias given the sanction of hiw to a 
rule of conduct wliich the entire civilized world recognizes as essential 
to the physical and. moral well-being of society. Upon no subject is 
there such a concurrence of opinion among philosophers, moralists, and 
statesmen of all nations, as on the necessity of periodical cessations from 
labor. One day in seven is the rule, founded in experience and sus- 
tained by science. There is no nation, possessing any degree of civiliza- 
tion, where the rule is not observed, either from the sanctions of the law 
or the sanctions of religion. This fact has not escaped the observation 
of men of science, and distinguished philosophers have not hesitated to 
pronounce the rule founded upon a law of our race. 

" The Legislature possesses the undoubted right to pass laws fen- the 
preservation of health and the promotion of good morals, and if it is of 
opinion that periodical cessation from labor will tend to both, and thinks 
proper to carry its opinion into a statutory enactment on the subject, 
there is no power, outside of its constituents, which can sit in judgment 
upon its action. It is not for the judiciary to assume a wisdom which it 
denies to the Legislature, and exercise a supervision over the discretion 
of the latter. It is not the province of the judiciary to jiass upon the 
wisdom and policy of legislation ; and when it does so, it usurps a p(nver 
never conferred by the constitution. 

" It is no answer to the requirements of the statute to say that mankind 
will seek cessation from labor by the natural influences of self-preserva- 



'3(> 

tion. The position ussimies that all men are independent, and at liberty 
to work wlienever they choose. Wliether this be true or not in theory, 
it is false in fact ; it is contradicted by every day's experience. The rela- 
tions of superior and subordinate, master and servant, principal and clerk, 
always have and always will exist. Labor is in a great degree depend- 
ent upon capital, and unless the exercise of the power which capital 
affords is restrained, those who are oldiged to labor will not possess the 

freedom for rest which they would otherwise exercise. The law steps 

in to restrain the power of capital. Its object is not to protect those who 
can rest at their pleasure, but to afford rest to those who need it. and 
who, from the conditions of society, could not otherwise obtain it. Its aim 
is to prevent the physical and moral debility which springs from nniji- 
terrupted labor ; and in this aspect it is a beneficent and merciful law. 
It gives one day to the poor and dependent ; from the enjoyment of 
which no capital or povVer is permitted to deprive them. It is theirs for 
repose, for social intercourse, for moral culture, and, if they choose, for 
divine worship. Authority for the enactment I find in the great object 
of all government, Avhicli is protection. Labor is a necessity imposed by 
the condition of our race, and to protect labor is the highest office of our 
laws." 

Indeed, every one c;in see that the only cliance for rest 
to the over-worked laboring chisses in (nir factories and 
worksliops, and in the heated rooms of our cities, is in a 
htvv compelling cessation from secular pursuits at regular 
intervals. AVithout it there would be for tliem only cease- 
less toil. To them, therefore, such a law is a great bless- 
ing. It enables them, one day in a week, to be with their 
families ; to seek with them the pure air of the country; 
to visit gardens, and places for quiet enjoyment ; to ex- 
change courtesies with friends and relatives, and to be free 
from the perpetual din of the shop, and the ever-pressing 
thought that only by the sweat of their l)row they can 
earn their daily bread. To the objection that vSunday is 
a day of religious observance by certain sects, Judge Field 
answered as follows : 

" The power of selection being in the Legislature, there is no valid rea- 
son why Sunday should not be designated as well as any other day. Prob- 
ably no day in the week could be taken which would not be subject to 
some objection. That the law operates with inconvenience to some is no 
argument against its constitutionality. Such inconvenience is an incident 
to all general laws. A civil regulation cannot be converted into a relig- 
ious institrution because it is enforced on a day that a particular religious 



37 

sect reji'anlsns sMcicd. 'PIic fact tliaf t lie civil rc.iiulat ion linds sn))])ort 

in the rcliiiidus oiiiiiion nl'a vast majority of llic jtcoph' of Caliloniia is no 
arunmcnt ajiainst its establishment. It wnnld ))c Ibrtnnate for so<'icty if 
all Avise civil rules obtained a ready obedience from the citizen, not 
merely from the recinirements of the law, bnt from conscientious or reli<i- 
iuus convictions of tlieir obliiiation. The law ai;;ainst homicide is not the 
less \\ ise and necessary l)ecause the divine commaTid is 'thou shalt do no 
murder." The legislation against perjury is not the less useful and essen- 
tial for the due administration of justice brcause liie injunction comes 
from the .Most High, 'th.Mi shalt not bear false witness against thy neigh- 
bor.' The establi.shmeni by law of Sunday as a day of rest from labor, 
is none the less a benetieent and hunume regulation because it accords 
with the divine precept that upon that day ' thou shalt do no manner of 
-vvork ; thou, and thy son. aiul thy daughter, thy man-servant and thy 
maid-servant, thy cattle, and the stranger that is within thy gates.' " 

To till' oltji'ctioii that tlie law was in conflict Avitli tlio 
clause dcclarinii' the iiialienahk' rights of all men to acquire, 
possess, and protect projxM'tv, he answered that the clanse 
was never intended to iidiiljit leu'islation u[)(>n them, and 
that the mode and manner ol' acquiring, possessing, and 
[ii-otccting property were matters npon which laws wei'e 
passed ;it eveiy every session of the Legislature. 

" All sorts of restrictions and regulations," he added, " are placed upon 
the acquisition and di.sposition of property. What contracts are valid, 
and what are invalid, when they must be in writing, and when they can be 
made by parol, what is essential to transfer chattels, and what to convey 
realty, are matters of constant legislation. Some modes of acquisition 
are subject to licenses, and some are prohibited. The right to acquire 
property, with the nse of it, must be considered in relation to other rights. 
It may be regulated lor the public good, though thereby the facility of 
acquisition is lessened, as in the sale of gunpowder and drugs, and in the 

practice of different professions. To say that a prohibition of work 

on Sunday prevents the acquisition of property, is to beg the question. 
With more truth it may be said, that rest upon one day in seven better 
enables men to accjuire on the other six." — (9 Cal., 527.) 

The decision of the com't was rendered at the April term 
in 1858. In 1861 the Legislature passed another Sunday 
law sinnlar in its provisions to the one declared to be un- 
constitutional, and af the July term of that year the court 
held it to be constitutional, tlms overruling the decision in 
E.v-p'irfr Nciniuin. and adopting the views expressed In' 
Judge Field in his dissenting opinion in that case. — (18 
Cal.'", 680.) 



The XoN-RECEivABiLiTY OF Le(;al-Teni)Er Xotes for 
State Taxes. 

Ill Perry V8. Waslil)iirn the question arose 'wliether 
Treasury notes of the United States were receivable for 
state and county taxes. The act of Congress made such 
notes " a legal tender in payment of all debts, private and 
public." The court held that Congress only intended by 
debts such obligations for the payment of money as are 
founded upon contract. Judge Field gave the opinion of 
the court, and in s[)caking on this point he said : 

" The act does not, in our judgment, have any reference to taxes levied 
under the laws of the State. It only speaks of taxes due to the 
United States, and distinguishes between them and debts. Its language 
is, ' for all taxes, internal duties, excises, debts, and demands of every 
kind due to the United States, the notes shall be receivable." When 
it refers to obligations other than those to the United States it only uses 
the term 'debts' ; the notes it declares shall be 'a legal tender in payment 
of all debts public and private.' Taxes are not debts within the meaning 
of this provision. A debt is a sum of money due by contract, express or 
implied. A tax is a charge upon persons or property to raise money for 
public purjjoses. It is not founded upon contract ; it does not establish 
the relation of debtor and creditor between the taxpayer and State ; it 
does not draw interest ; it is not the subject of attachment ; and it is not 
liable to set-off. It owes its existence to the action of the legislative 
power, and does not depend for its validity or enforcement upon the in- 
dividual assent of the taxpayer. It operates in invifiim.^^ 

Independent of tlie consideration mentioned, it is evi- 
dent that the States can collect their taxes in such way as 
they may see fit — in goods as well as money, as was for- 
merly done in some of the States; and that this right has 
never been surrendered to the general government. This 
case is important as l)eing the first one in which the re- 
ceival)ility of legal -tender notes for State taxes was brought 
before the courts for adjudication. 

The Supreme Court of the United States cited the de- 
cision with approval and followed it in Lane County vs. 
Oreo-on (7 Wall, 71). 



STEPHEN J. FIELD 



JUDGE OF THE SUPREME COURT OF THE 
UNTIED STATES. 



Mr. Field was eoinniissioned as a Justice of the Supreme 
Court of tlie United States on the 10th of March, 1863, but 
he did not take the oath of ofHce until the 20th of May 
afterwards. In June following he was assigned by the 
President to the Tenth Circuit, then consisting of the 
States of CaUfornia and Oregon.* When T^evada became 
a State she was included in the circuit. As a member of 
the Supreme Court he was required to attend the sessions 
of the court at Washington m the winter, and hold the 
Circuit Court in his circuit in the summer. He was thus 
compelled, until the overland railroad was completed, to 
travel, going by the way of the Isthmus, over twelve thou- 
sand miles a year, and now since the completion of the road 
he is obliged to travel over eight thousand miles a year. 
When his office was created he was allowed one thousand 
dollars a year for his travelling expenses, but in 1871 Con- 
gress repealed the law allowing this sum ; and now, notwith- 
standins: the immense distance he has to travel, and the 



* Under the 5th section of the "Act to amend the judicial system of 
the United States" of April 29th, 1802, (2 Stats, at Large, p. 156,) the 
President is authorized to allot the Justices of the Supreme Court to 
the circuits when a new justice is appointed in the recess of the court; 
such allotment to remain until a new allotment is made by the justices 
among themselves.— (See 2d Black's Rep., p. 7.) 



40 

great expenses to which he is thus subjected beyond those 
imposed upon his associates, he is forced to meet them 
out of his reguhir salai'v. He has never failed to visit 
his circuit any year since liis appointment, aUhough since 
the passage of the act of ISfJM, providing for the appoint- 
ment of circuit judges, lie has not been recpiired to attend 
a term in his circuit Init once in two years. Of the many 
important cases tried and disposed of l>y him there, men- 
tion will be made hereafter. 

When he went on the Supreme Bench, Taney was Chief 
Justice, and Wayne, Catron , Nelson ,Grier,Cliti:brd, vSwayne, 
Miller, and Davis were associate justices. Chief .lustice 
Taney died in the follov^aug year, and ]\Ir. Chase was a[)- 
pointed his successor. The business of the court is always 
greater tlian can he disposed of l)y the judges, and at 
every session cases involving im[)()rtant principles are de- 
cided. But those which have attracted the greatest atten- 
tion, and excited the deepest interest since 1863, have 
grown out of the civil war and the legislation to which it 
gave rise. 

The Milli(4an Case, 

" One of the earliest and most impoi'lant cases of this 
kind was the Milliga-)i case. In October, 18(J4, Milligan, 
a citizen of the United States and a resident of Indiana, 
was arrested by order of tlie military commander of the 
district and confined in a military prison near the capital 
of the State. He was subsequently, on the 21st of the 
same month, put on trial, before a military commission 
convened at Indianapolis, in that State, upon charges of: 
1st, Conspiring against the Government of the United 
States ; 2d, Atibrding aid and comfort to the rebels against 
the authority of the Urnted States ; 3d, Inciting insur- 
I'ection ; 4th, Disloyal practices ; and 5th, Violation of 
the laws of war ; and was found guilty and sentenced to 
death by hanging. He was never in the military ser- 
vice ; there was no rebellion in Indiana ; and the civil 



41 

courts wvvc opoii in tluit State and in the iindislnrltod cx- 
c'rcis(> o1' tlu'ir jni'iscru-tioii. Hu' sentence of the military 
commission was aflinncd l)_y tlu; l^'esidcnt, who directed 
that it shonld he carried into immediate exccntion. The con- 
demned thi'renpon prestMited a petition to the Circnit (\)nrt 
of the I nited States in Imhana lor a ^vrit o'( linhniM cDi-pti.^, 
prayino- to he discliarii-ed from cnstody, adeuMnLi- the ille- 
gahty of his arrest and of the |)roceedinL':s of the mihtary 
commission. The jndiics of the Circnit Conrt were di- 
vided in opinion npon the question whether the ^vrit slioidd 
he issned and the petitioner diseharii-cd, whieh, of coiirse, 
in\'(>lved the Jurisdiction of the military commission to try 
him, rpon a certificate of (hvision the case was l)rought 
to the Supreme Court at the I)ecend)er term of IHil-'). 

The case was elaborately aro-ued l»y aide and (hstino-uislied 
counsel, consistino; of Mr, Joseph E. \[c])onald, now U, 
S. Senator from Indiana, Mr, James A, Garfield, a dis- 
tinguished mendjer of Congress, Mr, Jeremiah S, Black, 
the eminent jurist of Pennsjdvania, and Mr. David Dudley 
Field, of Xew York, for the petitioner ; and by Mr. Henry 
Stanbery, tlie Attorney-CTeneral, and Gen, B, F, Butler, 
for the goverimient, Tlieir arguments were remarkable 
for learning, research, abiHty, and. eloquence, and will 
re[tay the careful perusal not only of the student of law, 
l)ut of all lovers of constitutional liberty. The judgment 
of tlie c(HU't was for the liberty of the citizen. All the 
judges agreed to his discharge, but tlie opinion, which has 
given so much celebrity to the case, and placed the protec- 
tion of the citizen, in States wliere the civil courts are open, 
on solid grounds, obtained the approval of only five of the 
j udges against four of them, Jmh/e Field was one of the five ; 
his rote irns esuciifidi fo iii<il;r ihuf diiinion (he judgment of the 
court. " The opinion was written by Mr. Justice Davis, and 
it will he a perpetual monument to his honor. It laid down 
in clear and unnustakable terms the doctrine tluit military 
connnissions organized during the war, in a State not in- 
vaded nor engaged in rebellion, in which the federal courts 



42 

were open and in the undisturbed exercise of their judicial 
functions, had no jurisdiction to try a citiz3n,\vho was not 
a resident of a State in rebellion, nor a prisoner of war, 
nor a person in the military or naval service ; and that 
Congress could not invest them with any such power ; and 
that in States where the courts were thus open and undis- 
turbed, the guaranty of trial by jury contained in the Con- 
stitution was intended for a state of war as well as a state 
of peace, and is equally binding upon rulers and people 
at all times and under all circumstances." 

The Cummings Case. 

" At the same term witli the Milligan case the test-oath 
case from Missouri was brought before the court and ar- 
gued. In January, 1865, a convention had assembled in 
that State to amend its constitution. Its members had been 
elected in November previous. In April, 18(35, the constitu- 
tion, as revised and amended, was adopted by the conven- 
tion, and in June following by the people. Elected, as the 
members were, in the midst of the wMr, it exhibited through- 
out traces of the animosities which the w^ar had engendered. 
By its provisions the most stringent and searching oath as 
to past conduct known in history was required, not only 
of officers under it, but of parties holding trusts and pursu- 
ing avocations in no w^ay connected with the administra- 
tion of the government. The oath, divided into its sep- 
arate parts, contained more than thirty distinct affirmations 
touching past conduct, and even embraced the expression 
of sympathies and desires. Every person unable to take 
it was declared incapable of holding in the State " any 
office of honor, trust, or protit under its authority, or of 
being an officer, councilman, director or trustee, or other 
manager of any corporation, public or private, now exist- 
ing or hereafter established by its authority, or of acting 
as a professor or teacher in any educational institution, or 
in any common or other school, or of holding any real 



4^^ 

e^»t;Uo (tr otliei* property in trust for tlio use ornny cliiircli, 
reliu'ions society, or congTegation. " 

And every ihm-sou liolding, at tlie time the ameiuled 
eouslitiitioii IodIv etiect, any of the olliees, ti'dsts, or posi- 
tions mentioned, \vas i'e((uired, within sixty days thereafter, 
to take the oath ; and, if lie laiU'd to eomply with this re- 
(iuirement,it was dechvred that his oitiee, trust, or position 
shtuild Ipso fdi-to hecome vaeaiit. 

Xo person, after the expiration of the sixty days, was 
permitted, without takino; the oath, "to ]>ra('tiee as an 
attorney or eounsellor-at-law,'' nor,- after that period i-ouhl 
'' any person V)e eom|.)etent as a hishop, pi'iest, deaeon, 
minister, elder, or other clergyman, of any refigious per- 
suasion, sect, or denominafion, to teach, or preach, or sol- 
emnize marriages,'" 

Fine and imprisonment were prescrihed as a punishment 
for holding or exercising any of "the otiices, positions, 
trusts, professions, or functions " specified, without having 
taken the oath ; and false swearing or affirmation in taking 
it was declared to be perjury, punishable by imprisonment 
in the penitentiary. 

Mr, Cummingsof Missouri, a priest of the Roman Cath- 
olic Church, was indicted and convicted, in one of the cir- 
cuit courts of that State, of the crime of teaching and 
preaching as a priest and minister of that religions denom- 
ination without having first taken the oath thus prescribed, 
and was sentenced to pay a fine of five hundred dollars 
and to be committed to jail mitil the same was paid. On 
appeal to the Supreme Court of the State the judgment 
w^as aiiirmed, and the case w^as brought on a writ of error to 
the Supreme Court of the United States, It was there argued 
with great learning and ability by distinguished counsel, 
consisting of Mr. ^Montgomery Blair, of Washington, Mr, 
David Dudley Field, of Xew York, and Mr, Heverdy 
Johnson, of Maryland, for Mr. Cummings ; and by Mr. 
G. P, Strong and Mr, John B, Henderson, of Missouri, the 
latter then Fnited States Senator, for the State. 



44 

" It was evident that the power asserted by the State of 
Missouri to exact this oath for past conduct from pai-ties, 
as a condition <»f their continuing to pursue certain pro- 
fessions, or to hokt certain trusts, might, if sustained, he 
often exercised in timi's of excitement to tlie oppression., 
if not ruin, of the citizen. For, if the State couhl require 
the oath for the acts mentioned, it might rerpiire it for any 
a(tts of one's past hfe, the nundjer an<l charactor of whicli 
wouhl (k'[»end upon the mere will of its legishiture. It 
might compel one to affirm, under oatli, that he liad never 
viohited the Ten Gommandments, nor exercised his politi- 
cal rights except in conformity with the views of the ex- 
isting majority. Indeed, under this kind of legishition, 
the most flagrant wrongs miglit be committed and whole 
classes of people deprived, not only of their political, but 
of their civil rights. 

''It is difficult to speak of the whole system of expurga- 
tory oaths for past conduct without a shudder at the 
sutiering and oppression they were not only capable of 
eliecting but often did eft'ect. Such oaths have never been 
exacted in England, nor on the Continent of Europe. 
Test-oaths there have always been limited to an affirma- 
tion on matters of present belief, or as to present dispo- 
sition towards those in power. It was reserved for the 
ingenuity of legislators in our country during the civil 
war to make test-oaths reach to past conduct. 

" The court held that enactments of this character, op- 
erating, as they did, to deprive parties, by legislative de- 
cree, of existing rights for past conduct, wdthout tlie for- 
mality and the safeguard of a judicial trial, fell within the 
inhibition of the Constitution against the passage of bills 
of attainder. In depriving parties of existing riglits for 
past conduct, the provisions of the constitution of Missouri 
imposed, in effect, a punishment for such conduct. Some 
of the acts for which such deprivation was imposed were not 
punishable at the time ; and for some this deprivation was 
added to the punishments previously prescribed, and thus 



4.") 

they IV'II uihUm' tlu- liii'thev prohibiticMi of tlic roiistitutioii 
ao-aiiisi tlu' [.:i-s:m\' *>!' an ex post fi -In law. '\\w decision 
o!" the cM)ui-r, thiTt'lorc". was for tlie discliari>;e of the Cath- 
olic priest. The jndu-iuent against liini was reversed, and 
the Supreme Court o!' Missouri was directed to onUu- the 
inferior coui't hy wliich he was tried to set liini at hherty."' 
This judu-nient ohtained the concurrence of only tive 
judges against four of them. .JmJ-i,- F!rhl u:/.^ one of the 
tire : Jm rote irfia e.sifienihil to th'it /iiit'/niciit ; (t)ttl he irrote the 
opinion of the conii. 

TiiK Garlaxi) Cask. 

Immediately follt)wing the case of Cummings that of 
E.r-p:irte Garland was argued, involving the validity of the 
iron-clad oath, as it was termed, prescribed for attorneys 
and counsellors-at-law l>y the act of Congress of January 
:i4tli, IcSi!."). Mr. A. H. Garland, now Tnited States Sena- 
tor from Arkansas, had been a member of the bar of the 
Supreme Court of the United States before the civil war. 
When Arkansas passed her ordinance of secession and 
joined the (V)nfederate States, he went with her, and was 
one of her representatives in the Congress of the Confed- 
eracy. En July, 1865, he received from the President a 
full pardon for all otfences committed by his participation, 
director implied, in the rebeUion. At the following term 
of the court he produced his pardon, and asked permission 
to continue to practice as an attorney and counsellor with- 
out taking the oath required by the act of Congress, and 
the rule of the court made in conformity witli it, which 
he was unable to take by reason of the oiiices he had held 
under the Confederate Government. 

The application was argued by eminent counsel, con- 
sisting of Mr. Matthew II. Carpenter, of Wisconsin, and 
Mr. Reverdy Johnson, of Maryland, for the petitioner, 
Mr. Garland, and Mr. Marr, another apphcant for admis- 
sion, who had participated in the rebellion, tiling written 
aro-uments ; and by Mr. Speed, (^f Kentucky, and Mr. 



4(J 

Henry Stanbery, tlie Attortiey-Geiieral, on tlie other side. 
The whole subject of expurgatory oaths was discussed, 
and :dl tliat could be said on either side was fully and 
elaborately presented. 

^' Tlie court in its decision followed the reasoning of the 
Cumniings case and held that the law was invalid, as applied 
to the exercise of the petitioner's right to practice his pro- 
fession; that such right was not a mere indulgence, a matter 
of grace and favor, revocable at the pleasure of the court, 
or at the command of the legislature ; l)ut was a right of 
which the petitioner could be deprived only by the judg- 
ment of the court for moral or professional delinquency. 
The court also held that the pardon of the petitioner re- 
leased him from all penalties and disabilities attached to tlie 
otience of treason committed by his participation in the re- 
Ijellion, and that, so far as that otfence was concerned, he 
was placed beyond tlie reach of punishment of any kind. 
But to exclude him by reason of that ofLence — that is, by 
requiring him to take an oath that he had never com- 
mitted it — was to enforce a punishment for it notwith- 
standing the pardon ; and that it was not within tlie con- 
stitutional power of Congress thus to inflict punishment 
beyond the reach of executive clemency." 

The judgment in this case also was pronounced by live 
of the judges against four of them. Jialf/e Field here nefiiln 
WHS one of the fie e. His rote ir>/s esserttial to the judt/inent ; 
and. he wrote the opinion of the court * 

The McArdle Case. 

" The Reconstruction Acts, so-called — that is, '^ An act to 
provide for the more ethcient government of the rebel 

"111 the decision of the two test-oath cases — the Cumniings case and 
the Garland case — Justices Wayne, Nelson, Grier, Clififord, and Field con- 
curred. Chief Justice Chase and Justices Swayne, Miller, and Davis dis- 
sented. Afterwards Chief Justice Chase expressed his concurrence in the 
opinion of the majority ; and the decision was followed hy the whole 
court, with the exception of Mr. Justice Bradley, in the case of Pierce 
vs. Carskadon, decided at Hie December term, 1872. — (16 Wallace, 234.) 



47 

States; of March -Id, 18G7, and :m net of tlic :^:5(l of the 
same month, snp[)leinentary !•• llu' fornicr- wcri' violctitly 
attacked in C'onu'i'oss when hclorc it for consideration, as 
in\aHd jniconstitnlidnal, and arbiti'ary measures of the_i2:ov- 
ernmcnt ; and as soon as tlicy were [)asso(l Narions steps 
were taken to hrini;- tliem to tlie test ol'Jadieial examina- 
tion and arrest their enfoi'eement. Those actsdivide<l the 
late insurgent States, except Tennessee, into five mihtary 
(Hstriets, and phiced them under miHtaiy control to he ex- 
ercised mitil constitutions, containing various provisions 
stated, were adopted and approved by Congress, and the 
States declared to be entitled to representation in that body. 
The State of Georgia, in April following their passage tiled 
a hill in the Supreme Court invoking the exercise of its 
original jurisdiction, against Stanton, Secretary of War, 
Grant, General of the Army, and Pope, Major-General, 
assigned to the command of the Third Military l^istrict, 
consisting of the States of (Georgia, Floi'ida, and Alahanui; 
to restrain those officers from carrying into ettect the pro- 
visions of the acts. The bill set forth the existence of the 
State of Georgia as one of the States of the Union ; the 
civil war in which she, with other States forming the 
Confederate States, had been engaged with the government 
of the United States; the surrender of the Confederate 
armies in 18G5,and lier sul)mission afterwards to the Con- 
stitution and laws of the Union ; tlie withdrawal of the 
militar}' government from Georgia by the rresident as 
Commander-in-Chief of the army of the United States; the 
re-organization of the civil government of the State under 
his direction and with his sanction; and that the govern- 
ment thus re-organized was in full possession and enjoy- 
ment of all the rights and privileges, executive, legislative, 
and judicial, belonging to a State in the Union under the 
Constitution, with the exception of a representation in the 
Senate and House of Representatives. Tlie bill alleged 
that the acts were designed to overthrow and annul the ex- 
isting siT)vernment of the State, and to erect another and a 



48 , 

ditferent government in its place, unauthorized by the 
Constitution and in defiance of its guaranties ; and that 
the defendants, acting under orders of the President, were 
about to set in motion a portion of the army to take mih- 
tary possession of the State, subvert her government, and 
subject her people to military rule." 

The court, however, dismissed the bill, holding that it 
called fo]- judgment upon a political question. — (6 Wal- 
lace, 50.) Other attempts were made to obtain the judg- 
ment of the court upon the legislation in question, but until 
the McArdle case, they failed from the assumed want of 
jurisdiction in the court to pass upon its vahdity as the ques- 
tion was presented. But in the McArdle case the validity of 
that legislation came up in such a form that its considera- 
tion could not he avoided. In Xoveml)er, 1867, McArdle 
had been arrested and held in custody by a military com- 
mission organized in Mississippi under the Reconstruction 
Acts, for trial upon charges of (1) disturbing the public 
peace ; (2) inciting to insurrection, disorder, and violence ; 
(3) libel ; and (4) impeding reconstruction. He there- 
upon applied to the Circuit Court of the United States for 
the District of Mississippi for a writ of h'/beas corpus, in order 
that he might be discharged from his alleged illegal im- 
prisonment. The writ was accordingly issued, but on the 
I'eturn of the officer showing the authority under whicli the 
petitioner was lield, he was ordered to be remanded. From 
that judgment he appealed to the Supreme Court. Of 
course, if the Reconstruction Acts were invalid the peti- 
tioner could not be held, and he was entitled to his dis- 
charge. The case excited great interest throughout the 
country. Judge Sharkey and Robert J. Walker, of Mis- 
sissippi, David Dudley Field and Charles O'Connor, of Xew 
York, and Jeremiah S. Black, of Pennsylvania, appeared 
for the appellant ; and Matthew^ II. Carpenter, of Wiscon- 
sin, Lyman Trumbull, of Illinois, and Henry Stanbery, the 
Attorney-General, appeared for the other side. The case 



4^) 

was tliorou2;lily argued, as anv one must know 1'r<uu the 
character of the counsel. 

'' Seldom has the court listened to arguments equal in 
learning, ability, and eloquence. Tlie whole subject was 
exhausted. As tlie arguments were widely published in 
the public journals, and read throughout the country, they 
prtxluced a profound effect. Tbe impression was general 
that the Reconstruction Acts could not l)e sustained ; that 
they were revolutionary and destructive of a republican 
form of government in the States, which the Constitution 
required the federal government to guarantee. Of course 
what the judgment of the court would have been cannot 
be known, as it never expressed its opinion. The argu- 
ment was had on the 2d, 3d, 4th, and 9th of March, 1868, 
and it was expected that the case w^ould be decided in reg- 
ular course of proceedings wdien it was reached on the sec- 
ond subsequent consultation day, the 21st. In the mean- 
time an act was quietly introduced into the House, and 
passed, repealing so much of the law of February 5th, 1867, 
as authorized an appeal to the Supreme Court from the 
judgment of the Circuit Court on writs o^ h'lheas corpus, or 
the exercise of jurisdiction on appeals already taken. The 
President vetoed the bill, but Congress passed it over his 
veto, and it became a law" on the 27th of the month.* 
Whilst it was pending in Congress the attention of the 
Judges was called to it, and in consultation on the 21st 
they postponed the decision of the case until it should be 
disposed of. It was then that Mr. Justice (Irier wrote the 
followung protest, wdiich he afterwards read in court : " 



Protest of ^NIk. Justice Grier. 



ly RE 1 
^NIcArdle. / 

This case was fully argued in the beginniug of this month. It is a 
ease that involves the liberty and rights not only of the appellant, but of 
millions of ou r fellow-citizens. The country and the parties had a right to 
expect that it would receive the immediate and solemn attention of this 
court. By the postponement of the case we shall subject ourselves, 

* 15 Stats, at Large. 44. 



whether justly or unjustly, to the imputation that we have evaded the 
performance of a duty imposed on us by the Constitution, and waited 
for legislation to interpose to supersede our action and relieve us from 
our responsibility. I am not willing to be a partaker either of the eulogy 
or opprobrium that may follow ; and can only say : 
" Pudet ha;c opprobria nobis, 
Et dici potuisse ; et non potuisse repelli." * 

R. C. Griek. 
I am of the same opinion with my brother Grier, and unite in his pro- 
test. Field, J. 

After the passage of the repeahng act, the case was con- 
tinued ; and at the ensuing term the appeal was dismissed 
for want of jurisdiction. — (7 Wall., 506.) No further di- 
rect attempt was ever afterwards made to obtain the judg- 
ment of the court upon the constitutionality of the Recon- 
struction Acts. 

Confiscation Cases. 

On the 17th of July, 1862, the President approved of 
the act of Congress commonly known as the Confiscation 
Act. It is entitled " An act to suppress insurrection, to 
punish treason and rebellion, to seize and confiscate the 
property of rebels, and for other purposes." Its first sec- 
tion prescribed the punishment for treason thereafter com- 
mitted. It punished it with death, or, in the discretion of 
the court, with imprisonment for not less than five years and 
a fine of not less than ten thousand dollars ; and it provided 
that the slaves of the party adjudged guilty, if any he had, 
should be declared free. The second section provided for 
the punishment of the oftence of inciting, setting on foot, 
or engaging in any rebellion or insurrection against the 
authority of the United States or the laws thereof, or en- 
gaging in or giving aid and comfort to the rebellion or 
insurrection then existing. The third section declared 
that parties guilty of either of the ofiences thus described 



*" It fills us with shame that these reproaches can be uttered, and can- 
not be repelled." The words are found in Ovid's Metamorphoses, Book 
I., lines 758-9. In some editions the last word is printed refelli. 



■)1 

should 1)0 forever incapable and dis(iiialitied to Inild any 
office under the United States. The I'onrth section pro- 
vided tliat Ihe act should net atlect the prosecution, con- 
viction, or punishment of pi'i'sons u-uilty of treason before 
tlie passaii'e of the act, unless such persons were convicted 
undei- the act itself. The tittli section declared " that to 
insure the speedy termination " of the reliellion, it should 
be the duty of the President to cause the ^- seizure of all 
tlie estate and property, money, stocks, credits, and efiect»" 
of certain persons named therein, and to apply and use 
the same and their proceeds for the support of the army 
of the United States. Among the chisses named were in- 
cluded persons who might thereafter act as officers, mili- 
tary or civil, under the Confederate States, or hold any 
agency under them, or any of the States composing the 
Confederacy, and persons owning propsrty in any loyal 
State or Territory of the United States, or in the District of 
Columbia, who should thereafter assist and give aid and 
comfort to the rebellion. The sixth section declared that 
if any person within any State or Territory of the United 
States, other than those aboved named, after the passage of 
the act, being engaged in armed rebellion against the 
United States, or in aiding or abetting such rebeUion, 
should not, within sixty days after public warning and 
proclamation of the President, cease to aid and abet it, 
and return to his allegiance to the United States, all his 
" estate and property, moneys, stocks and credits" should 
be hable to seizure ; and that '' all sales, transfers, or con- 
veyances of any such property after the expiration of the 
said sixty days " shotdd be " null and void," and that it 
-should be '' a sufficient bar to any suit brought by such 
person for the possession or the use of such property, or any 
of it, to allege and prove " that he was one of the persons 
described in the section. 

The other sections of the act i)rescribed the proceedings 
to be taken for the condemnation of the property after it 
had been seized and for its disposition The " other pur- 



po.ses " ineutioncd in the title of the act related princi- 
pally to slaves, tlieir eniploj'nient or colonization, and the 
power of the President to proclaim annesty and pardon. — 
(12 Stats., 590.) 

The proclamation of the President, reference to which 
was made in the sixth section, was issued aiid pu])lished 
on the 25th of July 1862.— (12 Stats., 1266.) 

Before the constitutionality of this act was passed upon 
hy the Supreme Court, the question arose as to the import 
and meaning of the last clause of the sixth section, declaring 
"all sales, transfers, and conveyances" of property by per- 
sons not heeding the warning of the President and ceasing 
to aid the rebellion, to be null and void. In Corbett vs. 
Xutt (10 Wall., 479) it was contended that a dcrlse to one 
Mrs. Plunter, a resident in Virginia, within the Confederate 
lines, was a transfer within the meaning of the act, and by 
its provisions was invalid. But the court answered, that 
assuming that a devise was included within "the sales, 
transfers, and conveyances " invalidated by the act, such 
invalidity could only be asserted by the United States. 
The act contemplated the seizure and confiscation of the 
property of certain persons engaged in the rebellion, and 
authorized the institution of proceedings for tliat purpose; 
and Judge Field, speaking for the court, said : 

" It was to prevent these provisions from being evaded by the parties 
whose property was liable to seizure that ' sales, transfers, and convey- 
ances ' of the property were declared invalid. They were null and void as 
against the belligerent or sovereign right of the United States to appropri- 
ate and use the property for the purpose designated, but in no other re- 
spect, and not as against any other party. Neither the object sought, nor 
the language of the act, requires any greater extension of the terms used. 
The United States were the only party who could institute the proceed- 
ings for condemnation ; the offence for which such condemnation was de- 
creed was against the United States, and the property condemned, or its 
proceeds, went to their sole use. They alone could, therefore, be affected 
by the sales. 

" Any other construction would impute to the United States a severity 
in their legislation entirely foreign to their history. No people can exist 
without exchanging commodities. There must be buying and selling and 



53 

exclianniiiii ill cvory ciiiiiniuiiily, or the -iivator i)art of its inhabitants 
would lia\c lu-itluT Ibinl nor laiincnt. And yet tlic aijiiunciit of the de- 
fendant, if good for anything, goes to this extent, that by the act of Con- 
gress 'all sales, transfers, and conveyances' of property of the vast num- 
bers engaged in the late rebellion against the United States, constituting 
the great majority of many towns and cities, and even of several States, 
were utterly null and void ; that even the commonest transactions of ex- 
I'liange in the daily life of these people were tainted with invalidity. It is 
(litHeult to conceive the misery which would follow from a legislative de- 
cree of this wide-sweeping character iu any community, where its execu- 
tion was (Diiceived to be possible, or coniidence was reposed in its valid- 
ity."— 1 1(1 Wall., 479-480. 1 

III the ease of Miller vs. riiited States (11 AVall., 2(38) 
the question of the eonstitutionality of the aet came di- 
rectly before the court. In tluit case 200 .shares of stock in 
tiie Michigan Southern and Xorthern Indiana Railroad 
Company, and 343 shares in the Detroit, Monroe and Toledo 
Railroad Co., the property of one Samuel Miller, a resi- 
dent of Virginia, was seized by the marshal of the District 
of ^Michigan under the act, and, by proceedings in the Dis- 
trict Court of that district, were condemned as forfeited 
to the Tnited States. The IT. S. Circuit Court affirmed 
the decision, and the case was taken to the Supreme Court. 
Besides various ol^jections urged to the decree, for irregular- 
ities in the alleged seizure and proceedings, the unconstitu- 
tionality of the act under which it was rendered was as- 
serted. The court met this question directly, and affirmed 
the validity of the act, holding that, while so much of it as 
imposed [>enalties for treason was passed in the exercise 
of the municipal power of Congress to legislate for the 
punishment of oliences against the sovereignty of the 
United States, all that portion which provided for the con- 
fiscation of property of rebels was passed in the exercise 
of the war powers of the government. The opinion of the 
court was delivered by Judge Strong, and received the 
concurrence, on this point, of all the judges present at the 
argument, except Judges Cliftbrd and Field. Chief Jus- 
tice Chase was absent from the court the whole term on 
account of ill-health. Judge Xelson was engaged on the 



54 

Joint High Coniiuissioii for the settlement, by treaty, of 
questions in dispute between the United States and Great 
Britain. Judges Chfibrd and Field dissented, Judge Field 
giving a dissenting opinion. They did not deny the strict 
legal right of the government to confiscate the private 
property of enemies, that is, of permanent inhabitants of 
the enemies' country, although by the humane policy of 
modern times sucli property, unless taken in the field or 
besieged towns, or as a military contribution, is usually 
exempt from confiscation; but they conteufU'd tliat tlie 
act in question was not directed against enemies as such, 
but against persons who were guilty of certain alleged 
often ces. 

After stating tlie several provisions of the act, Judge 
Field said as follows : 

" It would seem clear, theretbre. that the provisions of the act were not 
passed in the exercise of the war powers of the oovernnient, but in the 
exercise of the municipal power of the government to legislate for the 
punishment of offences against the United States. It is the property of 
persons guilty of certain acts, wherever they may reside, in loyal or dis- 
loyal States, which the statute directs to be seized and confiscated. It is 
also for acts committed after the passage of the statute, except in one 
particular, corrected by the joint resolution of the two houses, that the 
forfeiture is to be declared. If it had been the intention of the statute 
to confiscate the property of enemies, its prospective character would 
have been entirely unnecessary, for whenever jjublic war exists the right 
to order the confiscation of enemies' property, according to Mr. Chief 
Justice Marshall, exists with Congress. 

" That the legislation in question was directed, not against 'enemies, 
hut against persons who might be guilty of certain designated public 
offences, and that the forfeiture ordered was intended as a punishment 
for the offences, is made further evident by what followed the passage of 
the act of Congress. After the bill was sent to the President it was as- 
certained that he was of opinion that it was unconstitutional in some of 
its featui-es, and that he intended to veto it. His objections were that 
the restriction of the Constitution concerning forfeitures not extending 
beyond the life of the offender had been disregarded. To meet this objec- 
tion, which had been communicated to members of the House of Kepre- 
sentatives, where the bill originated, a joint resolution explanatory of the 
act Avas passed by the House and sent to the Senate. That body, being 
informed of the objections of the President, concurred in the joint reso- 
lution. It was then sent to the President and was received by him be- 



55 

fore the expiration of the ten clays allowed him for the consideration of 
the oris^iiial 1)111. lie nliirncd the bill and resolntion to;j;et.her to the 
House, wliere ihcy originated, with a message, in which he stated 
that, considerin<r the act and the resolution explanatory of the act as 
being substantially one, he had approved and signed both. That joint 
resolution dcclari's that tlie itrovisions ol' the third clause of the filth 
section of Hr- art shall be .so construed as not (;> apply to any act or acts 
done prior to its i)a.s.sage, ' nor .shall any i)unislimenl or proceedings 
under said act be so construed as to work a forfeiture oi' the real estate 
of the oftender beyond his natural life.' 

"The terms here used, ' forfeiture ' of the estate of the ' offender,' have 
no application to the confiscation of enemies' property uiuler the law of 
nations. They are, as justly observed by counsel, strictly and exclusively 
applicable to punishment for crime. It was to meet the constitutional re- 
quirement that the punishment by forfeiture should not extend beyond 
the life of the offender that the joint resolution was passed. The Presi- 
dent said to Congress, the act is penal, and does not conform to the require- 
ment of the Constitution in the extent of punishment which it author- 
izes, and I cannot, therefore, sign it. Congress accepts his interi)retation, 
and by its joint resolution directs a construction of the act in accordance 
with his views. And this construction, thus directed, is decisive, as it 
appears to me, of the character of the act. Indeed it is dififlcult to con- 
ceive of any rea.son for the limitation of the forfeiture of an estate to the 
life of the owner, if such forfeiture was intended to apply only to the 
property of public enemies.'" 

" The inquiry, then, arises whether proceedings in rem for the confis- 
cation of the property of parties charged to be guilty of certain overt acts 
of treason, can be maintained without their previous conviction for the 
alleged offences. Such proceedings, according to Mr. Chief Justice Mar- 
shall, may be had tor the cou<leniuation of enemies' property when au- 
thorized by Congress. The proceedings in such cases are merely to authen- 
ticate the fact, upon which, under the law of nations, the confiscation fol- 
lows. But here the inquiry is, whether, upon the assumption that a party 
is guilty of a particular public offence, his property may be seized, and 
upon proof of his guilt, or its assumption upon his failure to appear upon 
publication of citation, condemnation may be decreed. The inquiry is 
prompted from the supposed analogy of these cases to proceedings in rem 
fur the confiscation of property for offences against the revenue laws, or 
the laws for the suppression of the slave-trade. But in these cixses, and 
in all cases where proceedings in rem are authorized for a disregard of 
some municipal or public law, the offence constituting the ground of con- 
demnation inheres, as it were, in the thing Itself. The thing is the in- 
strument of wrong, and is forfeited by reason of the unlawful use made 

* See Bigelow vs. Forrest, 9 Wall., 350, and McVeigh vs. United States, 
11 Wallace, 259. 



56 

of it, or the unlawful condition in which it is placed. And generally the 
thing, thus subject to seizure, itself furnishes the evidence for its own 
condemnation. Thus, goods found smuggled, not having been subjected 
to the inspection of the officers of the customs, or paid the duties levied by 
law, prove of themselves nearly all that is desired to establish the right 
of the government to demand their confiscation. A ship entering the 
mouth of a blockaded port furnishes by its position evidence of its intention 
to break the blockade, and the decree of condemnation follows. A ship 
captured whilst engaged in the slave-trade furnishes, in the use to which it 
was subjected, the material fact to be established for its forfeiture. In all 
these cases the proceeding is against the offending thing. And it is true 
that in these cases criminal proceedings will also lie against the smuggler 
or slave-trader, if arrested, and that the procedings in rem are wholly inde- 
pendent of. and unaffected by, the criminal proceedings against the person. 
But in the two cases the proof is entirely different. In the one case there 
must be proof that the thing proceeded against was subjected to some 
unlawful use or was fouud in some irulawful condition. In the other case 
the personal guilt of the party must be established, and when condemna- 
tion is founded ui^on such guilt, it must be preceded by due conviction 
of the offender, according to the forms prescribed by the Constitution. 
' Confiscations of property,' says Mr. Justice Sprague in the Amy War- 
wick,^-' ■ not for any use that has been made of it, which go not against an 
offending thing, but are inflicted for the personal delinquency of the 
owner are punitive, and punishment should be inflicted only upon due 
conviction of personal guilt.' 

" If we examine the cases found in the reports, where proceedings in 
rem have been sustained, we shall find the distinction here stated con- 
stantly observed. Indeed, were this not so, and proceedings in rem 
for the confiscation of property could be sustained, without any reference 
to the uses to which the property is applied, or the condition in which it is 
found, but whilst, so to speak, it is innocent and passive, and removed 
at a distance from the owner and the sphere of his action, on the ground 
of the personal guilt of the owner, all the safeguards provided by the Con- 
stitution for the protection of the citizen against punishment, without pre- 
vious trial and conviction, and after being confronted by the witnesses 
against him, would be broken doAvn and swept away." — (11 Wall., 319- 
323.) 

The court havins: adjudged that the statute, in author- 
izing suits in rem for the confiscation of the property of 
persons alleged to have heen guilty of certain overt acts 
of treason, was valid, proceedings under it were sustained, 
which, though taken ostensihly in the interest of the 
United States, were in many instances prosecuted for the 

*Sprague's Decisions, 2nd vol., 150. 



lionotit of [liirtios connected with tlie coni't in whicli thoj 
Were luid, or llieir iumiediate relatives or tViends, A de- 
l»loi':dile instance of the kind is stated in the opinion of 
tiie Court of Appeals in Virginia, in the case of Under- 
wood V8. McVeigh.— (23 Grattan, 4()!».) There the dis- 
trict judge ordered the appearance of the owner of tlie 
property seized, and his answer and claim to he stricken 
from the files of the court, hecause he was in the position 
of an alien enemy; and thereu[)i)n adjudged that the prop- 
erty he confiscated and forteited to the Tnited States. 
At the sale mider the decree thus rendered, the wife of 
tlie judge became the purchaser of the pnipcrty at a price 
greatly below its value. Some evidence of the abuses 
])racticed under the statute will also be found in the opinion 
of the Supreme Court in McVeigh vs. AVindsor (11 Wall., 
259) ; Osborn vs. United States (91 U. S.,475) ; and Wind- 
sor vs. McVeigh (93 U. S., 274). 

The owners of the property seized did not often appear in 
the suits, usually not having information of the proceedings 
until after a decree of condemnation had passed, and the 
property had been sold. Persons immediately connected 
with the court, where these suits were prosecuted, were in a 
position to take great advantage of the government, and 
that they availed themselves of the opportunity, the rec- 
ords of the courts abundantly show. A distinguished 
mend)er of the profession at the South, formerly on the 
Supreme Bench (Judge Campbell), who had (Occasion to 
look a good deal into these proceedings, has stated that 
the statute as a financial expedient was abortive, only about 
1150,000 having been realized from the confiscation de- 
crees of the courts, and most of that sum after the war 
had nearly or quite ended. And he thinks that President 
Lincoln, in insisting upon the explanatory resolution be- 
fore signing the act, must have agreed with one of the 
greatest of statesmen, " that speculative plunder, contin- 
gent spoil, future, long-adjourned, uncertain bootj^, pillage 
to supply troops and sustain armies, would not serve to 



58 

maintain even a mercenary war ; " and have regarded the 
act — comprehending as it did in its scops nine-tenths of 
the property and white persons within the hmits of the 
Confederate States — as a mere hrutumfulmen, whicli, if not 
availahle as such, it was not worthy an enhglitened and 
civihzed people to enforce in spirit or detail. 

In Conrad vs. Wafles (9(3 LI. S., 279) the court held 
that the act, in its provisions for the confiscation of pro[)- 
erty, applied only to the property of persons who there- 
after might 1)6 guilty of acts of disloyalty and treason ; 
that sales and conveyances between enemies of real 
property in the enemies' country passed the title, sub- 
ject only to be defeated if the government should after- 
wards proceed for its condemnation; and that the pro- 
vision of the act declaring all transfers of pi-opci-t}' by 
enemies null and void only invalidated the transactions 
as against the right of the United States to claim the for- 
feiture of the property, affirming in this respect the de- 
cision in Corbett vs. Nutt, cited above. In giving its 
opinion Judge Field said : 

"A differeut doctrine would unsettle a multituds of titles passed dur- 
ing the war between residents of the insurrectionary territory, tempo- 
rarily absent therefrom whilst it was dominated b}- the federal forces. 
Such residents were deemed enemies by the mere fact of being inhab- 
itants of that territory, without reference to any hostile disposition man- 
ifested or hostile acts committed by them. In numerous instances, also, 
transfers of property were made in loyal States, bordering on the line of 
actual hostilities, by parties who had left those States and joined the in- 
surgents. This was particularly tlie case in Missouri and Kentucky. No 
principle of public policy would-be advanced, or principle of public law 
sustained, by holding such transfers absolutely void, instead of being 
merely inoperative as against the right of the United States to appropri- 
ate the property j«re belli: on the contrary, such a holding would create 
unnecessary hardship, and therefore add a uew cruelty to the war." 

In Burbank vs. Conrad (9(3 U. S., 291) the court held 
that by the decree of condemnation under the act, the 
United States acquired only the life-estate of the alleged 
offender, actually possessed by him at the time of its seizure, 
not the estate which the records in the register's office may 
have shown to be in him. Accordingly a previous sale 



59 

was not affected, altliouii'li not recorded. On this point 
.Indge Field, in speaking for the court, said : 

■'Tlu' object of recxuiring ;i i)iihlic ivcord of instruments affecting the 
title to real property is to proteet third parties dealing with the vendor, 
by impiirting notice to theiu of any previous sale or hypothecation of the 
])n)i)iTty. and to protect the purchaser against any subsetiueut attempted 
disposition of it. In Louisiana the conveyance is valid between the par- 
ties without registration and passes the title. The only consequence of a 
failure of the purchaser to place his conveyance on the records of the par- 
ish where the ijroperty is situated, is that he is there))y sul>jected to the 
risk of losing the property if it be again sold or hypothecated by his 
vendor to an innocent third ])arty ; or if it be seized and sold by a cred- 
itor of his vendor for the latter's debts. The second purchaser from the 
vendor and the bidder at the judicial sale would in that case hold the 
proi)erty. The United States never stood in the position of a second pur- 
chaser of the property sold by the elder Conrad. They were not pur- 
chasers at any sale of his property. They had caused his estate in the 
land, whatever that was, to be seized and condemned. By the decree of 
condemnation that estate vested in them for the period of his life. His 
estate for that period was then their property. The statute declares that 
the property condemned ' shall become the property of the United States, 
and may be disposed of as the court shall decree.' It was the property 
of the United States, therefore, which was sold and conveyed at the mar- 
shal's sale. The United States acquired by the decree, for the life of the 
offender, only the estate which at the ^time of the seizure he actually 
possessed ; not what he may have appeared from the public records to 
possess, bj^ reason of the omission of his vendees to record the act of sale 
to them ; and that estate, whatever it was, for that period passed by the 
marshal's sale and deed ; nothing more and nothing less. The registry 
act was not intended to protect the United States in the exercise of their 
power of confiscation from the consequences of previous unrecorded sales 
of the alleged offender. It was in the power of Congress to provide for 
the confiscation of the entire property, as being within the enemy's coun- 
try, without limiting it to the estate remaining in the offender ; but not 
having done so, the court cannot enlarge the operation of the stringent 
provisions of the statute. The plaintiff had notice of the character and 
legal effect of the decree of condemnation when he purcha.sed, and is 
therefore presumed to have known that if the alleged offender possessed 
no estate in the premises at the time of their seizure, nothing passed to 
the United States by the decree, or to him by his purcha.se." 

Cases on Pardon and Amnesty. 

In his great speecli on coneiHation witli America, Burke 
observed, what all nmst admit to be true, " that there is a 



60 

wide dift'erenee in reason and policy between the mode of 
proceeding' on the irregular conduct of scattered indi- 
viduals, or even of bands of men who disturb order within 
the State, and the civil dissensions which may, from time 
to time, on great questions, agitate the several connnunities 
which compose a great empire;" and said that it looked to 
him to be narrow and pedantic to apply the ordinary ideas 
of criminal justice to the great public contest then going 
on in America ; and that he did not know the method of 
drawing up an indictment against a whole people. 

This language must hove occurred to the belligerents in 
the late civil war. And yet the Constitution declares that 
" treason against the United States shall consist only in 
levying war against them, or in adhering to their enemies, 
giving them aid and comfort." The people of the Con- 
federate States, in making war against the United States, 
came within the terms of this definition, however unwise 
and monstrous the proposition, that under it they were all 
exposed to criminal prosecution. The attempt to pass 
sentence upon them as a people w^ould, as Burke said, be 
a proceeding " for wise men, not judicious; for sober men, 
not decent; for minds tinctured with humanity, not mild 
and merciful." But under the legislation of Congress and 
of several of the States, it was of the highest moment to 
many of these people, that they should be relieved from 
the disabilities to which their participation in the rebellion 
subjected them ; and that could only be accomplished, 
whilst that legislation remained in force, by pardon or 
amnesty. The term amnesty is not found in the Constitu- 
tion, but is generally used to denote the clemency ex- 
tended to a whole community or to a class of persons. 
Pardon is the generic term and includes every species of 
executive clemency, individual or general, conditional or 
absolute. 

The first case after the war, in which the Supreme Court 
had occasion to speak of the effect and operation of a 
pardon, was that of Garland, who was precluded, as stated 



Icssioii 


ns [ 


Ill 


e c 


Olll 


;-i,l 


)y 


net 


of 


Co 


11- 


vvhv 


lli( 


)li 


oi- 


iiiLi' 


in 


(1. 


at 



HI 

ahove, from contimiini;" ilio in'actiee of his piv 
atloTiu'V and rounscllor-at-law in the Siiprci 
his inabiHty to hike the .)ath rcMiiiiivd l»_v \\\( 
UTOss, tliat he hail novel- [)aiii('i[iat(Ml in the 
given it aid and comfort, .lud^'e Field, spea 
case for the court, said : 

"The Constitution provides that the President ' shall have power to 
<;nint reprieves and xxirdons lor oftences against the United States, except 
in eases of impeachment.' 

"The power thus conlerred is unlimited, with the exception stated. 
It extends to every oft'ence known to the law, and may be exercised at 
any time after its commission, either before legal proceedings are taken 
or during their pendency, or after conviction and judgment. This power 
of the President is not subject to legislative control. Congress can nei- 
ther limit the effect of his pardon nor exclude from its exercise any class 
of offenders. The benign prerogative of mercy reposed in him (;annot be 
fettered by any legislative restrictions. 

"Such being the case, the inquiry arises as to the effect and operation 
of a pardon, and on this point all the authorities conciir. A pardon 
reaches both the punishment prescribed for the offence and the guilt of 
the offender; and when the pardon is full, it releases the punishment and 
blots out of existence the guilt, so that in the eye of the law the offender 
is as innocent as if he had never committed the offence. If granted be- 
fore conviction, it prevents any of the penalties and disabilities conse- 
(luent upon conviction from attaching ; if granted after conviction, it re- 
moves the penalties and disabilities, and restores him to all his civil 
rights ; it makes him, as it were, a new man, and gives him a new credit 
and capacity. 

" There is only this limitation to its operation : it does not restore of- 
lices forfeited, or property or interests vested in others in consequence of 
the conviction and judgment. 

"The pardon produced by the petitioner is a full pardon "for all of- 
fences by him committed, arising from participation, direct or implied, 
in the rebellion,' and is subject to certain conditions which have been 
complied with. The effect of this pardon is to relieve the petitioner 
from all penalties and disabilities attached t6 the offence of treason, 
committed by his participation in the rebellion. So tar as that offence is 
concerned, he is thus placed beyond the reach of punishment of any kind." 
—(4 Wall., 380-381.) 

In several cases subsequently before the court, on ap- 
peal from the Court of Claims, which were brouc:ht for 
tlie recovery of the proceeds of cotton seized by officers 
of the United States under the captured and abandoned 



62 

property act of March 12tli; 1863, tlie doctrine of the 
Garland case was followed and applied, so as to relieve 
the petitioners from the necessity of showing that they 
had never given any aid or comfort to the rebellion, which 
otherwise would have been required under the act. 

In Paddleford's case, (9 Wall., 531,) the petitioner hav- 
ing taken the oath of allegiance prescribed by tlie procla- 
mation of President Lincohi, of December 8th, 1863, and 
kept it inviohite, it was held, that he was entitled to claim 
the proceeds of cotton subsequently seized and sold under 
that act. The court cited the language in the Garland 
case as to the effect of a pardon, that by it " in the eye of 
the law the otfender is as innocent as if he had never com- 
mitted the offence." The pardon had purged him of tlie 
offence when the seizure was made. In the words of the 
Chief Justice, who gave the opinion of the court, " tlie 
law made the grant of pardon a comjilete substitute for 
proof that he gave no aid or cc^mfort to tlie rebellion." 

In Klein's case, (13 Wall., 129,) subsequently before 
the court, an act of Congress, which undertook to do away 
with this efiect and operation of a pardon, was brought to 
its notice. That act declared that a pardon should not su- 
persede the necessity of proof of loyalty by its recipient, 
but that its acceptance, without an express disclaimer and 
protestation, should be conclusive evidence of his guilt of 
the acts pardoned, and be inoperative as evidence of the 
rights whicli the court had adjudged were conferred by 
it. The C(Hirt, to its great honor, held the act to be uncon- 
stitutional — an attempt t() prescribe to the judiciary the 
effect to be given to the previous pardon of the President. 
The Chief Justice, in giving its opinion, said: "It is clear 
that the legislature cannot change the effect of such a 
jiardon any more than the executive can change a law. 
Yet this is attempted by the provision under consideration. 
The court is required to receive special pardons as evi- 
dence of guilt and U) treat them as null and void. It is 
required to disregard pardons granted by proclamation on 



en 

condition, though tlu' condition has l.ccn rulllllcd, niid io 
deny tlicni tlicir leu-al ctlcct. This ccrtaiidv inijiairs tlic 
oxcrutivc anthoritv, and directs tlic conrt to hi' instru- 
mental t.) that end." 

Tn Mrs. .\rnistn.n,u-"s case, (1:5 Walh, l.')4,) wiiich was 
heard alter the (k'cision in Klein's case, tlie coiul declined 
to consider whether tlie evidence was sullicient to pi-ove 
tliat tlie claimant had ii-iven aid and comfort to the rid»el- 
lion, and held that the ])roc]amation of i»ai'don and am- 
nesty issued hy the President entitled her to the proi-eeds 
of her captured and abandoned property in tlie Treasury, 
without proof that slie never <j:;ave such aid and cond'ort. 
The Chief Justice, in deliverinii' tlie opinion of the court, 
oi)serve(l that the proclamation granting pardon, nncon- 
ditionally and without reservation, " was a ptibhc act of 
which all courts of the United States are bound to take 
notice, and to which all courts are homid to give effect," 

Subsequently, at the December term, 1872, in Carlisle 
vs. The I'nited States, the question again arose as to the 
effect of the proclamation of pardon and amnesty made 
by the President, December 25th, 1868, upon the rights of 
parties who had given aid and comfort to the reliellion, 
and were claiming the proceeds of cotton seized by the 
officers of the United States and turned over to the agents 
of the Treasury Department; and the court said, s[)eaking 
through Judge Fiehl : 

" Assuming that they [the claimants] are within the terms of the 
proclamation, the pardon and amnesty granted i-elieve them from the 
legal consequences of their participation in the rebellion, and from the 
necessity of proving that they had not thus participated, which other- 
wise would have been indispensable to a recovery. It is true, the pardon 
and amnesty do not and cannot alter the fact that aid and comfort were 
given by the claimants, hut they forever close the eyes of the court to the per- 
ception of that fact as an element in its Judgment, no rights of third parties 
having intervened." 

In Osliorn vs. Tlie United States, decided at the Octo- 
ber term, 1875, (91 U. S., 474,) the question was as 
to the effect of the President's pardon upon the rights 



of the petitioner to the proceeds of his property confis- 
cated by the decree of the District Court. The Circuit 
Court — Judge Miller presiding — was of opinion that, 
subject to the exceptions specified therein, the pardon 
restored all rights of property lost by the ofience pardoned, 
unless the property had by judicial process become vested 
in other persons; and that the proceeds of property con- 
fiscated, paid into court, were under its control until an 
order for their distribution was made, or they were paid 
into the hands of the informer entitled to receive them, or 
into the Treasury of the United States; and that until then 
no vested right to the proceeds had accrued so as to pre- 
vent the pardon from restoring them to the petitioner. This 
ruHng was assailed by oificers of the District Court, who 
were called upon to make restitution of a portion of the 
proceeds they had obtained. But the Supreme Court, in 
afiarming it, speaking through Judge Field, replied as 
follows : 

" It is uot a matter for these officers to complain that proceeds of prop- 
erty adjudged forfeited to the United States are held subject to the further 
disposition of the court, aud possible restitution to the original owner. 
That is a matter which concerns only the United States, and they have 
not seen fit to object to the decision. But independently of this con- 
sideration we are clear that the decision was correct. The pardon, as is 
seen, embraces all offences arising from participation of the petitioner, 
direct or indirect, in the rebellion. It covers, therefore, the offences for 
which the forfeiture of his property was decreed. The confiscation law 
of 1862, though construed to apply only to public enemies, is limited to 
such of them as were engaged in and gave aid and comfort to the rebel- 
lion. The pardon of that offence necessarily carried with it the release 
of the penalty attached to its commission, so far as such release was in 
the power of the government, unless specially restrained by exceptions 
embraced in the instrument itself It is of the very essence of a pardon 
that it releases the offender from the consequences of his offence. If in 
the proceedings to establish his culpability and enforce the penalty, and 
before the grant of the pardon, the rights of others than the government 
have vested, those rights cannot be impaired by the pardon. The gov- 
ernment having parted with its power over such rights, they necessarily 
remain as they existed previously to the grant of the pardon. The gov- 
ernment can only release what it holds. But unless rights of others in 
the property condemned have accrued, the penalty of forfeiture annexed 



(i.) 

to the commission ol'tlie otFem;e miisl lall wilh tlic pardon of tlio oftencc 
itself", provided the full operation of the i>ai<loii he not restrained by tlie 
conditions upon which it is granted."' 

In Knote VS. United States, (!).-) IT. S., i:)4,) heard at 
the" OctohcT term, 1.S77, the ([lU'stion \va> wlietlier tlic 
pardon and aniiK'sty i^'raiitod liy Ihe I'rt'sidi'nt's procla- 
niation entitled one, who had reeeived its henetits, to the 
proceeds of liis property prt'\ionsl_v ('on(hMnned and sold 
tnider the contiscation act, alter sncli proceeds had heen 
paid into the Treasurj-. Ami n[»on this suhjei-t. .ludij^e 
Field, speaking' for the court, said : 

" Moneys once in the Treasury can only be withdrawn by an appropri- 
ation by law. However large, therefore, may l)e the power of pardon 
l)ossessed by the President, and however extended may be its application, 
there is this limit to it, as there is to all his powers : it cannot touch 
moneys iu the Treasury of the United States, except expressly authorized 
J)y act of Congress. The Constitution places this restriction upon the 
pardoning power. 

" ^yhere. however, property condemned, or its proceeds, have not thus 
vested, but remain under control of the executive or of otHcers subject to 
his orders, or are in the custody of the j udicial tribunals, the property will 
be restored or its proceeds delivered to the original owner upon his full 
pardon. The property and the proceeds are not considered as so absolutely 
vesting in third parties or in the United States as to be unaffected by the 
pardon until they have passed out of the jurisdiction of the officer or 
tribunal. The proceeds have thus passed when paid over to the indi- 
vidual entitled to them, in the one case, or are covered into the Treasury, 
in the other."' 



LE(iAL-TENDER (A\SES AND CoXFEDER.VrE XOTES. 

Next to the questions relating to reconstruction, test-oaths, 
pardon, and amnesty, those relating to the notes issued hy 
the government to be used as a circulating medium, excited, 
after the war, the greatest interest. On the 25th of Feb- 
ruary, 1862, the President approved of an act of Congress 
entitled "An act to authorize the issue of United States 
notes, and for the redemption or funding thereof, and for 
fimding the floating debt of the United States," commonly 
known as the legal-tender act.- -(12 Stats., 345.) 
5 



It authorized the Secretary of the Treasniy to issue notes 
on the credit of the United States to the amount of one 
hundred and fiftj' millions, not drawing interest, payable 
to bearer, of such denominations as he might deem expe- 
dient, not less than five dollars each. And it declared 
that such notes should be " receivable in payment of all 
taxes, internal duties, excises, debts, and demands of every 
kind due to the United States, except duties on imports, 
and of all claims and demands against the United States 
of every kind whatsoever, except for interest upon bonds 
and notes," which was to be paid in coin, and be " lawful 
money and a legal tender in payment of all debts, public 
and private, within the United States, except duties on im- 
ports and interest as aforesaid." 

IS'o serious question was ever raised as to the power of 
the government to issue the notes as a means of borrow- 
ing money, or to make them payal^le to bearer, and of 
such denominations as would suit the convenience of the 
lender, or to make them receivable for dues to tlie United 
States. The only objection to the act was the provision 
making them "a legal tender in payment of all debts pub- 
lic and private," so far as it applied to private debts and 
debts owing by the United States. 

As Congress could only exercise such powers as were 
expressly delegated to it, or were necessary and proper to 
the execution of those powers, and as it was not expressly 
invested with control over the subject of legal tender, and 
the States were prohibited in terms from making anything 
but gold and silver such tender, the validity of the pro- 
vision, so far as it applied to private debts, was at once 
raised. The question was one of immediate and pressing 
importance, not only from the fact that the amount 
authorized by the act mentioned was issued, but by sub- 
sequent acts, containing a similar provision, the issue of a 
much larger amount was authorized, and in denominations 
as low as one dollar. These notes, not being convertible 
on demand into coin, soon depreciated in value in the 



iu 

iiiai'kc't, so at times diiriui;- tin- wai' llicv were til'lv cents 
below par, and loni;- after the war their [uireliasaljle jiower 
was greatly less tliau their noiiiiual amount. ITnserupu- 
lous debtors at once seized the occasion to discliarii-e their 
previous ol)liii'ations by these notes, tlius [>ayinu- tiieir 
(•reditors nominally the whole, hut in fact oidy a ]K)rtion, 
of their dues. The great corporations of the eountry, 
whieli had contracted a large indebtedness prior to the 
war, did not hesitate to offer to their creditors, these notes, 
Itoth for the interest and principal of their bonds. They 
measured their sense of justice, not by the rules of com- 
mon honesty, but by what the law permitted. 

In the case of Lane (''ounty vs. Oregon (7 Wall., 72) an 
attempt was made to compel the otRcials of that State to 
receive these notes for taxes in the face of legislation re- 
quiring such taxes to be paid in gold aud silver. But the 
Supreme Court held that taxes were not debts within the 
meaning of the legal-tender act, and that by the term 
debts were meant only such obligations for the payment of 
money as were founded upon contract, citing and following 
in this respect the opinion of Judge Field, given by him 
when on the bench of the Supreme Court of C^alifornia, in 
l^erry vs Washburn (20 Cal., 818). 

The Chief Justice, who spoke for the court in the case, 
referred to the power of taxation in the general govern- 
ment conferred b}' the Constitution, and to its limitations. 
He also mentioned the restrictions upon the States to tax 
exports or imports except for a single purpose, or to lay 
any duty on tonnage, and then added : 

"lu respect, however, to property, Ijusiness, uiid persons. Avittiin tlieir 
respective limits, their power of taxation remained and remains entire. 
It is, indeed, a concurrent power, and in the case of a tax on tlie same 
subject by both governments, the claim of the United States, as the su- 
preme authority, must be preferred ; but, with this qualification, it is 
absolute. The extent to which it shall be exercised, the subjects upon 
which it shall be exercised, and the mode in which it shall be exercised, 
are all equally within the discretion of the Legislatures, to which the 
States commit the exercise of the power. That discretion is restrained 



68 

only by the will of the people expressed in the State constitutions or 
through elections, and by the condition that it must not be so used as to 
burden or embarrass the operations of the national government.* There 
is nothing in the Constitution which contemplates or authorizes any di- 
rect abridgment of this power by national legislation. To the extent 
just indicated, it is as complete in the States as the like power, within 
the limits of the Constitution, is complete in Congress. If, therefore, the 
condition of any State, in the judgment of its Legislature, requires the 
collection of taxes in kind — that is to say, by the delivery to the proper 
officers of a certain i^roportion of products, or in gold and silver bullion, 
or in gold and silver coin — it is not easy to see upon what principle the'^ 
National Legislature can interfere with the exercise, to that end, of this 
power, original in the States, and never as yet surrendered." 

In Bronson vs. Rodes (7 AVall., 229) the question was 
raised whether a previous contract for the payment of a 
certain sum in gold and silver coin could be specifically en- 
forced, or whether it could be discharged, under the legal- 
tender act, by a tender of treasury notes. The court held 
that the contract could be specifically enforced. It is diffi- 
cult, at this day, to appreciate fully the earnestness of the 
opposition to this position. The fact that the law recog- 
nized two dift'erent kinds of currency, and that one only 
could be used for a certain class of pajanents — that is, for 
duties on imports — would seem to be a conclusive answer 
to the objections urged. As two kinds of currency were 
made lawful, a contract for either must be lawful also. A 
person might wish coin to remit abroad or to pay duties, 
or because it could be more safely kept at his residence, 
not being liable to be destroyed by fire or injured by water 
or other casualties. As the Chief Justice, who gave tlie 
opinion of the court, said : 

" The currency acts themselves provide for payments in coin. Duties 
on imports must be paid in coin, and interest on the public debt, in the 
absence of other express provisions, must also be paid in coin. And it 
hardly requires argument to prove that these positive requirements can- 
not be fulfilled if contracts between Individuals to pay coin dollars can 
be satisfied by offers to pay their nominal equivalent in note dollars. 

* Or, it may be added, to impose greater burdens upon the business or 
property in the State of non-resident, than upon the business or property 
of resident citizens. — (Ward vs. Maryland, 12 Wall., 418.) 



6D • 

The merchant who is to pay duties in coin must contract for the coin 
which he requires ; the bank which receives the coin on deposit contracts 
to repay coin on demand ; the messenj^er wlio is sent to the bank or the 
custom-house contracts to pay or deliver the coin according to his in- 
structions. These are all contracts, eitiun- ex))rcss or implied, to pay 
coin. Is it not plain that duties cannot be jiaid in coin il' these contracts 
cannot be enforced ? 

"An instructive illustration may be derived tVom another provision of 
the same acts. It is e.xpressly provided that all dues to the government, 
except for duties on imports, may be paid in United States notes. If, 
then, the government, needing more coin than can be collected from du- 
ties, contracts with some bank or individual for the needed amount, to 
be paid at a certain day, can this contra(!t for coin be perlbrmed by the 
tender of an equal amount in note dollars? Assuredly it may if the 
note dollars are a legal tender to the government lor all dues except 
duties on imports. And yet a construction which will support such a 
tender will defeat a very important intent of the act. 

" Another illustration, not less instructive, may be found in the con- 
tracts of the government Avith depositors of bullion at the mint to pay 
them the ascertained value of their deposits in coin. These are demands 
against the government other than for interest ou the public de1)t ; and 
the letter of the acts certainly makes United States notes payable for all 
demands against the government except such interest. But can any such 
construction of the act be maintained? Can judicial sanction be given 
to the proposition that the government may discharge its obligation to 
the depositors of bullion by tendering them a number of note dollars 
equal to the number of gold or silver dollars which it has contracted b}'^ 
law to pay ? 

" But we need not pursue the subject further. It seems to us clear 
beyond controversy that the act must receive the reasonable construction, 
not onlj^ warranted, but required, by the comparison of its provisions 
with the provisions of other acts, and with each other, and that upon 
such reasonable construction it must be held to sustain the proposition 
that express contracts to pay coined dollars can only be satisfied by the 
payment of coined dollars." 

The Confederate States also issued tbeii- notes, to be 
used as ciiyrency, but, unlike our governnient, tliey did 
not make them a legal tender. Contracts at the South 
during the war had reference generall}^ to these notes 
when dollars were mentioned. After the war, suits 
being brought upon many of these contracts, the ques- 
tion was raised as to the meaning to be attached to 
the term " dollars " used in them. On the one hand, it 



70 

was said, and correctly, that by " dollars," as defined in 
the statutes, were meant pieces of gold and silver coin of a 
prescribed fineness and weight, each bearing the stamp of 
the United States, expressive of its value. On the other 
hand, it was manifest that there would be great injustice 
in giving this meaning to the term, when by it only Con- 
federate notes were intended. As well might it be claimed 
that to contracts made in Germany, where the term " dol- 
lars " is used, a similar construction should be given when 
the contracts are sought to be enforced in this country, 
although the German dollar is worth only sixty-nine cents 
of our dollar. 

In Thorington vs. Smith, (8 Wall., 1,) wdiich was be- 
fore the court at the December term of 1868, this question 
was presented. In that case a tract of land in Alabama 
had been sold in 1864 by the plaintiff, Thorington, to the 
defendants for |45,000, of which $35,000 were paid, and 
for the residue a promissory note of the purchasers was 
o-iven. Upon the suppression of the rebellion, Confeder- 
ate notes became, of course, valueless, and, in 1867, Thor- 
ington filed a 1)111 against the purchasers for the enforce- 
ment of his lien as vendor, claiming $10,000 in the only 
money then current, that of the United States. The de- 
fendants answered that at the time of the purchase Ala- 
bama was one of the Confederate States, and from that por- 
tion where the parties resided, and the contract was made, 
the authority of the United States was excluded ; that 
there was no gold or silver coin nor were any notes of the 
United States in circulation there ; that the only currency 
in use for the ordinary transactions of business consisted 
of Confederate notes ; that the land purchased was worth 
only $3,000 in lawful money of the United States ; that 
the contract was to be paid, by agreement of parties, in 
Confederate notes, of which $35,000 were thus paid, and 
that the balance w^as to be discharged in the same way. 
It was, therefore, insisted, upon this state of facts, that the 
plaintitt" was not entitled to any relief. The court below, 



71 

behiii; of opinion that tlu> coiitrart was illc^-al lu'causc [»ay- 
ahk' in those noti's, tlisinissi';! the hill, hut the Siiprenie 
Court reversed the deu'ision, holding that the (^)nlV'd^'rate 
States had established a government of jiai'aniount loi'ce 
over the States of the Confederacy, and that hy its au- 
thority their notes were placed in circulation and hccanic 
ahnost exchisively the currency of those States ; that con- 
tracts pa.yal)le in them could not for that reason In' i-e- 
garded as made in aid of the insurrection ; that they had 
no necessary relations to the insui-gent government, hut 
were transactions in the ordinary course of civil society, 
and were without blame, except when proved to have been 
entered into with actual intent to further the rebellion. 
The court also held that evidence of the character and 
value of this currency was competent and admissible. 
Upon this latter point the court, speaking through the 
Chief Justice, said : 

'• It is quite clear that a contract to pay dollars, made between citizens 
of any State of the Union, while maintaining its constitutional relations 
with the national government, is a contract to pay lawful money of the 
United States, and cannot be modified or explained by parol evidence. 
But it is equally clear, if in any other country, coins or notes denomi- 
nated dollars should be authorized of dift'erent value from the coins or 
notes which are current here under that name, that in a suit upon a con- 
tract to pay dollars, made in that country, evidence would be admitted 
to prove what kind of dollars were intended, and if it should turu out 
that foreign dollars were meant, to prove their equivalent value in lawful 
money of the United States. Such evidence does not modify or alter the 
contract. It simply explains an ambiguity, which, under the general 
rules of evidence, may be removed by parol evidence." 

It was accordingly adjudged that the vendor could re- 
cover only the actual value of the Confederate notes at 
the time and place of the contract, in lawful money of the 
United States. 

At the December term of 1872, in Hanauer vs. Wood- 
rutf, this case was cited, and in reference to the alleged 
illegality of the contract, because made in Confederate 
currency, Judge Field, speaking for the court, said : 



" The transaction was in a currency imposed by irresistible force upon 
the community, in which currency the commonest transactions in the 
daily life of millions of people, even in the minutest particulars, were 
carried on, and without the use of which there would have been no me- 
dium of exchange among them. The simplest purchase in the market of 
daily food would, without its use, have been attended with inconveniences 
which it is difficult to estimate. It would have been a cruel and oppres- 
sive judgment, if all the transactions of the many millions of people, 
composing the inhabitants of the insurrectionary States, for the several 
years of the war, had been held tainted with illegality because of the use 
of this forced currency, when those transactions were not made with any 
reference to the insurrectionary government." — (15 AValL, 448. See, also, 
the Confederate note case, 19 Wall., 555.) 

Tlie constitutionality of the legal-tender clause of the act 
of Congress was discussed in Lane County vs. Oregon, 
Bronson vs. Rodes, and in other cases before the court, 
but they either went oti" on some other point, or their de- 
cision was reserved until judgment should he rendered in 
Hepburn vs. Griswold, wdiere the question was directly 
presented and could not be avoided. That case, which was 
before the court both at the December term of 1868, and 
the December term of 1869, was elaborately argued, first on 
briefs and then orally, by counsel of eminent ability, and 
it was long held under advisement. Indeed it was after- 
wards said by some of tlie judges that no case before the 
court since its organization had been more fully pre- 
sented or more deliberately considered. The question was 
whether the holder of a note payable in dollars, made be- 
fore the legal-tender act was passed, was obhged in law to 
accept in payment United States notes, equal in. nominal 
amount to the sum due, when tendered by the maker ; or 
in other words, whether debts contracted previous to the 
legal-tender act could be discharged, against the consent 
of the holder, by legal-tender notes. The presentation of 
the question placed the Chief Justice in a very embarrass- 
ing position. The provision assailed had been recom- 
mended by him when Secretary of the Treasury, though 
with much doubt and hesitation. It did not, however 
meet the approval of all the lawyers of the Senate. 



Some of the ablest of tliom, like ('oll;niu>r and FcssciuU'ii, 
oppost'd il as liolli iiiuu'ccssary and unconstiliitioiial. But 
as tlic war c-oiitimu'd. and inimeiisc dralts wrw made upon 
tlie Treasm-y, the validity of the [)rovision was o-enerally 
a^•(lui eseed in as a matter of necessity. So w hen the ques- 
tion came before the court for adjudication a- laru'e portion 
of the peopU' had come to believe in its constitutionality, 
and several supreme courts in ihe loyal States had pro- 
nounced in its favor. In adilitioii to all this, three of the 
judges expressed themselves stronu'ly on the subject as 
having no doubt whatever of the validity of the [trovision, 
A regard for consistency urged him to concur with their 
views. His mind was sorely perplexed, and the ((uestion 
was examined and re-examined by him with painful anx- 
iety. But his sense of duty prevailed. He could not l)e 
false to Ids convictions as a judge in order to preserve his 
consistency as a statesman. He pronounced against the 
vahdity of the provisioii and read the opinion of the court. 
That opinion is well known to the country. It presents 
the unconstitutionality of the provision in the clearest 
light. In it he alludes to his own change of views on the 
question, as follows : 

" It is not surprising that amid the tumult of the late civil war, and 
under the influence of apprehensions for the safety of the Eepuhlic, almost 
universal, different views, never before entertained by American states- 
men or jurists, were adopted by many. The time was not favorable to 
considerate reflection upon the constitutional limits of legislative or ex- 
ecutive authority. If power was assumed from patriotic motives, the as- 
sumption found ready justification in patriotic hearts. Many who 
doubted yielded their doubts; many who did not doubt were silent. 
Some who were strongly averse to making government notes a legal ten- 
der felt themselves constrained to acquiesce in the views of the advocates 
of the measure. Not a few who then insisted upon its necessity, or ac- 
quiesced in that view, have, since the return of peace, and under the in- 
fluence of the calmer time, reconsidered their conclusions, and now con- 
cur in those which we have just announced." — (8 AVall., 6"25.) 

The views of the Chief Justice, as well as the action of 
the court, in the several cases under the legal-tender act, 



74 

have been fully stated, because they had the entire con- 
currence and earnest support of Judge Field, and because 
of wbat subsequently occurred to bring about a reconsid- 
eration of the question decided and a reversal of the judg- 
ment of the court. Tbe Judge had frequent consultations 
upon the queotions raised with the Chief Justice, who 
never hesitated to express in strong terms his appreciation 
V of the Judge's counsel. 

The decision was received by the country, excepting 
• the debtor class, with favor. Many who did not object 
to the application of the act to future contracts were re- 
joiced that the injustice, likely to attend its application to 
past contracts, was prevented. As to future contracts, 
they said, parties acted with the law before them. But 
y from the debtor class, and especially the large corporations 
of the country, the greater part of whose liabilities had 
been created before the war, the decision met with decided 
hostility. A movement was at once set on foot to obtain 
its reversal. The legislation of Congress, suggested by 
the court in the hope that it might to some degree be re- 
lieved of the great pressure of labor upon it, favored this 
movement. In the winter of 1869 members of the Ju- 
diciary Committee of the Senate informed the court that 
they would be glad to receive from it suggestions for 
changes in the judicial system with a view to facilitate 
the discharge of its business. The members of the coui't 
thereupon met and appointe.l Judges Miller and Field a 
committee to consider the subject and report what changes 
should be recommended. They suggested a bill for the 
appointment of independent circuit judges. The sugges- 
tion was favorably received, and a bill for that purpose was 
prepared by them, and, after some verbal changes, was 
approved by the judges and sent to the Judiciary Com- 
mittee of the Senate. It was then reported by Senator 
Trumbull from that committee, with some slight changes, 
and was soon after passed by both Houses. President 
Johnson refused to sign it, but after Gen. Grant became 



President it was again introduced into the Senate and was 
soon passed, to take effect on the 1st of December, 18G9. 
It increased the number of judges of tlie Supreme Court 
to nine, thus necessitating the appointment of a new mem- 
ber, and created nine independent circuit judges. As the 
court then consisted of onl}^ eight judges, it was neces- 
sary, to obtain a niajority in favor of the legal-tender 
provision, that two new judges should be appointed who 
would agree with the three who had opposed the late 
decision. It was, therefore, suggested that the physical 
infirmities of Judge Grier were sucb that he should re- 
tire. At that time he was unable to walk without assist- 
ance from others, and he was accompanied by his servant 
itito the court-room whenever he took his seat on the 
bench. Owing to the frequent comments in the public 
journals upon his infirmities, and the suggestions of 
some friends, he was induced to send in liis resigna- 
tion. Ilis mind was then as clear as ever, but his physi- 
cal system was greatly impaired. The letter of the 
Judges to him on his resignation testifies to their high 
appreciation of the purity of his character, the great 
powers of his intellect, and his profound knowledge of 
the law. His resignation took eflect the 1st of February, 
1870. Mr. Stanton was appointed his successor, but he 
died a few days afterwards, before even Judge Grier's 
resignation took effect. So it was said by the present Sec- 
retary of State, Ml-. Evarts, that Judge Grier had the 
singular experience of attending the funeral of his suc- 
cessor whilst he himself was still on the bench. Judge 
Strong was then nominated and confirmed. For the new 
judgeship created Mr. E. 11. Hoar, of Massachusetts, the 
Attorney-General, was nominated, but he was rejected by 
the Senate. Judge Bradley was then nominated and 
confirmed. 

There have been many things of an unpleasant char- 
acter said in regard to the appointment of Judges Strong 
and Bradley, but the writer of this narrative cannot 



<2:ive uiiy nppi-uvul of them. Undoubtedly Mr, Hoar, the 
Attorney-General, wa.s very active and earnest to se- 
cure tlie appointment of judges who would favor a re- 
versal of the decision against the legal-tender provision. 
He openly said as mueli. It is also true that Judge 
Strong was known to be in favor of the constitutionality 
of that provision. Whilst a judge of the Supreme Court 
of Pennsylvania he had written an opinion to that 
ctfect. It was also well known that Judge Bradley, 
as counsel of the Camden and And)oy Railroad C^ompany, 
had given a similar opinion. Their appointment was un- 
doubtedly advocated partly in view of these facts, and this 
can be said without any injurious reflection upon them. 
It is probable that nearly all appointments of judges are 
made with some reference to their opinions as to the 
construction to be given to the Constitution. It is not 
at all likely that during the war any one would have been 
nominated, or, if nominated, have been confirmed, who 
believed that under it secession was a constitutional rem- 
edy of the States for their grievances, or who did not ap- 
prove of the forcible suf)pression of the rebellion by the 
General Government, There could be, therefore, tio just 
ground of reproach against those gentlemen because they 
were appointed in view of their previously expressed 
opinions. The complaint against them arose from the re- 
versal, through their aid, of the previously w-ell-eonsidered 
judgment of the majonty of the Court, without any reasons 
being advanced different from those presented when the 
case was originally heard. Thoughtful men, without ques- 
tioning the learning and ability of Judges Strong and 
Bradley, felt that it was wrong that a solemn judgment 
of the Court, affecting great public interests, reached only 
after long and careful considei'ation, should be reversed 
by a mere change in its personnel. 

Soon after the new judges had taken their seats, 
Attorney-General Hoar moved that two cases then pend- 



ing" undecided —the Latham ease mid the Deniing case, 
appealed from the Court of Chiims -.sliould be set down 
for argument, and suggested that the k'gal-tendcr [iro- 
vision sht)uhl be considered in them. 'IMiis ai)[>rK'atiou 
created a gO(»d deal of feeling, and led to an un})leasant 
controversy among members of the court. The ma- 
jority — consisting of the three judges who had previously 
dissented from the opinion in Hepburn vs. Griswold, and 
the two newly appointed judges — ordered the argument, 
and it would have taken place but from the hict that 
the appeals were dismissed by the appellants and the 
rehearing of the question thus prevented. Those who 
take any interest in this unfortunate controversy will lind 
the [larticulars stated in tlie life of Chief Justice Chase 
and in the journals of the day. It is not the intention of 
the writer of this narrative to recall them. Judges Xel- 
son, Clitlbrd, and Field were on pleasant terms with all 
their associates, and however great the ditference of opin- 
ion between them and the other judges, tlieir personal re- 
lations were not disturbed. 

At the following term of December, 1870, two other 
cases came before the court involving the constitutionality 
of the legal-tender cases — Knox vs. Lee and Parker vs. 
Davis. They are reported in 12th Wallace, under the title 
of "Legal-Tender Cases." In them the whole question of 
the constitutionality of the legal-tender clause was rear- 
gued and reconsidered. The previous judgment in Hep- 
burn vs. Griswold was reversed by the judgment of five 
against four, and the constitutionality of the tender clause 
asserted. Judge Strong gave the opinion of the court. 
The Cliief Justice and Judges Clitibrd and Field each 
^^ave a dissenting opinion. ()f these dissenting opinions 
this can be said: that they exhaust the whole subject, and 
it is difficult to understand how any one, after reading 
them, can doubt that the Constitution intended that gold 
and silver alone should be a legal tender in the United 
States. As said by Judge Field in his opinion : 



78 

'■ If we consider the history of the times when the Constitution was 
adopted ; the intentions of the franiers of that instrument, as shown in 
their debates ; the contemporaneous exposition of the coinage power in 
the State conventions assembled to consider the Constitution, and in the 
public discussions before the people; the natural meaning of the terms 
used ; the nature of the Constitution itself as creating a government of 
enumerated powers; the legislative exposition of nearly three-quarters of 
a century; the opinions of judicial tribunals, and the recorded utterances 
of statesmen, jurists, and commentators, it would seem impossible to doubt 
that the only standard of value authorized by the Constitution was to con- 
sist of metallic coins struck or regulated by the direction of Congress, and 
that the power to establish any other standard was denied by that in- 
strument." 

No adequate account of these dissenting opinions can 
be given without a much fuller citation than this narra- 
tive permits. A few extracts will be made from the one 
by Judge Field, as it is only with his judicial career that 
this narrative is concerned. 

Referring to the position urged on the argument of the 
case, that as the issue of the notes was authorized under 
the power to borrow money, the annexing to them the 
quality of legal tender was an appropriate means to the 
execution of that power, as it enhanced their value, and 
thus increasing their circulation, induced parties the more 
readily to advance upon them, the Judge said as follows: 

The power of Congress to borrow money "is not difterent in its nature 
or essential incidents from the power to borrow possessed by individuals, 
and is not to receive a larger definition. Nor is it difterent from the 
power often granted to public and private corporations. The grant, it 
is true, is usually accompanied in these latter cases with limitations as 
to the amount to be borrowed, and a designation of the objects to which 
the money shall be applied,— limitations which in no respect affect the 
nature of the power. The terms ' power to borrow money ' have the 
same meaning in all these cases, and not one meaning when used by in- 
dividuals, another when granted to corporations, and still a different one 
when possessed by Congress. They mean only a power to contract for 
a loan of money upon considerations to be agreed between the parties. 
The amount of the loan, the time of repayment, the interest it shall bear, 
and the I'orm in which the obligation shall be expressed are simply mat- 
ters of arrangement between the parties. They concern no one else. It 
is no part or incident of a contract of this character that the rights or 
interests of third jjarties, strangers to the matter, shall be in any respect 



79 

affectt'd. The transaction is conniiftcd when the lender has parted with 
his money, and tlie l)ovio\ver lias ^iven liis promise of repayment at the 
time, and in the manner, and with tiie seenrities stipulated between 
them. 

•■ As an inducement to the loan, and security for its repayment, the 
borrower may of course pledge such pi'operty or revenues, and annex to 
his promises such rights and privileges as he may possess. His stipula- 
tions in this respect ar(* necessarily limited to his own property, rights, and 
privileges, and cannot extend to those of other persons. 

" Now. whether a borrower— be the borrower an individual, a corpora- 
tion, or the government— can annex to the bonds, notes, or other evi- 
dences of debt given for the money borrowed, any ((uality by which they 
will serve as a means of satisfying the contracts of other parties, must 
necessarily depend upon the question whether the borrower possesses any 
right to interfere with such contracts, and determine how they shall be 
satisfied. The right of the borrower in this respect rests upon no ditferent 
foundation than the right to interfere with any other property of third 
parties. And if it will not be contended, as I think I may assume it 
will not be, that the borrower possesses any right, in order to make a 
loan, to interfere with the tangible and visible property of third parties, 
I do not perceive how it can be contended that he has any right to inter- 
fere Avith their property when it exists in the form of contracts. A large 
part of the property of every commercial people exists in that form, and 
the principle which excludes a stranger from meddling with another's 
]iroperty which is visible and tangible, equally excludes him from med- 
dling with it when existing in the form of contracts. 

" That an individual or a corporation borrowing possesses no poAver to 
annex to his evidences of indebtedness any quality by which the holder 
will be enabled to change his contracts with third parties, strangers to 
the loan, is admitted ; but it is contended that Congress possesses such 
power because, in addition to the express power to borrow money, there is 
a clause in the Constitution Avhich authorizes Congress to make all laws 
' necessary and proper ' for the execution of the powers enumerated. 
This clause neither augments nor diminishes the expressly designated 
powers. It only states in terms what Congress would equally have had 
the right to do without its insertion in the Constitution. It is a general 
principle that a power to do a particular act includes the power to adopt 
all the ordinary and appropriate means for its execution." 

" That is only appropriate which has some relati(m of fitness 

to an end. Borrowing, as already stated, is a transaction by Avhich, on 
one side, the lender parts Avith his money, and on the other the borrower 
agrees to repay it in such form and at such time as may be stipulated. 
Though not a necessary part of the contract of borroAving, it is usual for 
the borroAver to offer securities for the repayment of the loan. The fit- 
ness Avhich Avould render a means appropriate to this transaction thus 
considered must have respect to the terms Avhich are essential to the con- 



so 

tract, or to the securities which the borrower may furnish as an induce- 
ment to the loan. The quality of legal tender does not touch the terms 
of the contract of borrowing, nor does it stand as a security for the loan. 
A security su^jposes some right or interest in the thing pledged, which 
is subject to the disposition of the borrower. 

" There has been much confusion on this subject from a failure to dis- 
tinguish between the adaptation of particular means to an end and the 
effect, or supposed effect, of those means in producing results desired by 
the government. The argument is stated thus: the object of bor- 
rowing is to raise funds ; the annexing of the quality of legal tender to 
the notes of the government induces parties the more readily to loan upon 
them ; the result desired by the government — the acquisition of funds — 
is thus accomplished ; therefore, the annexing of the quality of legal 
tender is an appropriate means to the execution of the power to borrow. 
But it is evident that the same reasoning would justify, as appropriate 
means to the execution of this power, any measures which would result 
in obtaining the required funds. The annexing of a provision by which 
the notes of the government should serve as a free ticket in the public 
conveyances of the country, or for ingress into places of public amuse- 
ment, or which would entitle the holder to a percentage out of the reve- 
nues of private corporations, or exempt his entire property, as well as 
the notes themselves, from State and municipal taxation, would produce 
a ready acceptance of the notes. But the advocate of the most liberal 
construction would hardly pretend that these measures, or similar meas- 
ures touching the property of third parties, would be appropriate as a 
means to the execution of the power to borrow. Indeed, there is no in- 
vasion by government of the rights of third ijarties which might not 
thus be sanctioned upon the pretence that its allowance to the holder of 
the notes would lead to their ready acceptance, and produce the desired 
loan. 

" The actual effect of the quality of legal tender in inducing parties to 
receive them was necessarily limited to the amount required by existing 
debtors, who did not scruple to discharge with them their pre-existing 
liabilities. For moneys desired from other parties, or supplies required 
for the use of the army or navy, the provision added nothing to the 
value of the notes. Their borrowing power or purchasing power de- 
pended, by a general and an universal law of currency, not upon the 
legal-tender clause, but upon the confidence which the parties receiving 
the notes had in their ultimate payment. Their exchangeable value was 
determined by this confidence, and every person dealing in them ad- 
vanced his money and regulated his charges accordingly." 

" Without the legal-tender provision the notes would have cir- 
culated equally well and answered all .the purposes of government — the 
ouly direct benefit resulting from that provision arising, as already stated, 
from the ability it conferred upon unscrupulous debtors to discharge with 
them previous obligations. The notes of State banks circulated without 



81 

possessing that (quality and supplied a currency for the people just so 
long as confidence in the ability of the banks to redeem tlie notes contin- 
ued. The notes issued by the national bank associations during the war, 
under the authority of Congress, amounting to three hundred millions, 
which were never made a legal tender, circulated equall}' well with the 
notes of the United States. Neither their utility nor their circulation was 
diminished in any degree by the absence of a legal-tender quality. They 
rose and fell in the market under the same influences and precisely to the 
same extent as the notes of the United States, which possessed this qual- 
ity." 

Referring to the position that the annexing of the qual- 
ity of legal tender was a necessary means to the exercise 
of other powers of Congress, particularly to declare war, to 
suppress insurrection, to raise and support armies, and to 
provide and maintain a navy, all of which were called into 
exercise and severely taxed at the time, the Judge said as 
follows : 

" It is evident that the notes have no relation to these powers, or to any 
other powers of Congress, except as they furnish a convenient means for 
raising money for their execution. The existence of the war only in- 
creased the urgency of the government for funds. It did not add to its 
powers to raise such funds, or change, in any respect, the nature of tho.se 
powers or the transactions which they authorized. If the power to en- 
graft the quality of legal tender upon the notes existed at all with Con- 
gress, the occasion, the extent, and the purpose of its exercise were mere 
matters of legislative discretion ; and the power may be equally exerted 
when a loan is made to meet the ordinary expenses of government in 
time of peace, as when vast sums are needed to raise armies and provide 
navies in time of war. The wants of the government can never be the 
measure of its powers. 

" The Constitution has specifically designated the means by which funds 
can be raised for the uses of the government, either in war or peace. 
These are taxation, borrowing, coining, and the sale of its public prop- 
erty. Congress is empowered to levy and collect taxes, duties, imposts, 
and excises to any extent to which the public necessity may require. 
Its power to borrow is equally unlimited. It can convert any bullion it 
may po.ssess into coin, and it can dispose of the public lands and other 
property of the United States or any part of such property. The desig- 
nation of these means exhausts the powers of Congress on the subject of 
raising money. The designation of the means is a negation of all others, 
for the designation would be unnecessary and absurd if the use of any 
and all means were permissible without it. These means exclude a re- 
sort to forced loans, and to any compulsory interference with the prop- 
erty of third persons, excejit by regular taxation in one of the forms 
mentioned." 



82 

After showing that the act of Congress impaired the 
obhgation of past contracts, and referring to the statement 
of Judge Miller, in his dissenting opinion in Hepburn vs. 
Griswold, that the Constitution does not forbid legislation 
having that etfect, the Judge said as follows : 

" It is true there is no provision in the Constitution forbidding in ex- 
press terms such legislation. And it is also true that there are express 
powers delegated to Congress, the execution of which necessarily operates 
to impair the obligation of contracts. It was the object of the framers 
of that instrument to create a national government competent to repre- 
sent the entire country in its relations with foreign nations, and to ac- 
comi)lish by its legislation measures of common interest to all the people, 
which the several States in their independent capacities were incapable 
of effecting, or if capable, the execution of which would be attended 
with great difficulty and embarrassment. They, therefore, clothed Con- 
gress with all the powers essential to the successful accomplishment of 
these ends, and carefully withheld the grant of all other powers. Some 
of the powers granted, from their very nature, interfere in their execu- 
tion with contracts of parties. Thus war suspends intercourse and com- 
merce between citizens or subjects of belligerent nations; it renders during 
its continuance the performance of contracts, previously made, unlawful. 
These incidental consequences were contemplated in the grant of the 
war power. So the regulation of commerce and the imposition of duties 
may so affect the prices of articles imported or manufactured as to es- 
sentially alter the value of previous contracts respecting them ; but this 
incidental consequence was seen in the grant of the power over commerce 
and duties. There can be no valid objection to laws passed in execution 
of express powers that consequences like these follow incidentally from 
their execution. But it is otherwise when such consequences do not fol- 
low incidentally, but are directly enacted. 

" The only express authority for any legislation affecting the obligation 
of contracts is found in the power to establish a uniform system of bank- 
ruptcy, the direct object of which is to release insolvent debtors from 
their contracts upon the surrender of their property. From this express 
gi-ant in the Constitution I draw a very different conclusion from that 
drawn in the dissenting opinion in Hepburn vs. Griswold, and in the 
opinion of the majority of the court just delivered. To my mind it is a 
strong argument that there is no general power in Congress to interfere 
with contracts, that a special grant was regarded as essential to authorize 
an uniform system of bankruptcy. If such general power existed the 
deleo-ation of an express power in the case of bankrupts was unneces- 
sary. As very justly observed by counsel, if this sovereign power could 
be taken in any case without express grant, it could be taken in con- 
nection with bankruptcies, which might be regarded in some respects as 
a regulation of commerce made in the interest of traders. 



83 

"The grant of a liinitcd power over the subject of contracts necessarily 
implies that the franiers of the Constitution did not intend that Congress 
should exercise unliniitt'd power, or any power less restricted. The 
limitation designated is the measure of congressional power over the 
subject. This follows from the nature of the instrument, as one of 
enumerated jjowers. 

"The doctrine that where a power is not expressly forbidden it may 
be exercised would change the whole character of our government. As 
I read the writings of the great commentators and the decisions of this 
court, the true doctrine is the exact reverse, that if a power is not in 
terms granted, and is not necessary and proper for the exercise of a power 
thus granted, it does not exist." 

And, after referring to the interference ^^'itll contracts 
bv the legiskition of the several States, previous to the 
adoption of the Constitution, in the form of tender laws, 
appraisement laws, installment laws, and suspension laws, 
which was the cause of great oppression and injustice, 
and which Judge Story declared prostrated all private 
credit and all private morals, the Judge continued as 
follows : 

" It would retiuire verj^ clear evidence, one would sui>pose, to induce a 
belief that with the evils, resulting from what Marshall terms the sys- 
tem of lax legislation following the Revolution, deeply impressed on their 
minds, the framers of the Constitution intended to vest in the new gov- 
ernment created bj^ them this dangerous and despotic power which they 
were unwilling should remain with the States, and thus widen the pos- 
sible sphere of its exercise. 

" When the possession of this power has been asserted in argument, 
(ibr until now it has never been asserted in any decision of this court) 
it has been in cases where a supposed public benefit resulted from the 
legislation, or where the interference with the obligation of the contract 
was very slight. Whenever a clear case of injustice, in the absence of 
such supposed public good, is stated, the exercise of the power by the 
government is not only denounced, but the existence of the power is de- 
nied. No one, indeed, is found bold enough to contend that if A has a 
contract for one hundred acres of land, or one hundred pounds of fruit, 
or one hundred yards of cloth, Congress can pass a law compelling him 
to accept one-half of the quantity in satisfaction of the contract. But 
Congress has the same power to establish a standard of weights and 
measures as it has to establish a standard of value, and can, from time 
to time, alter such standard. It can declare that the acre shall consist of 
eighty square rods instead of one hundred and sixty, the pound of eight 
ounces instead of sixteen, and the foot of six inches instead of twelve, 
and if it could compel the acceptance of the same uimihcr of acres, 



84 

pounds, or yards after such alteration, instead of the actual quantity stip- 
ulated, then the acceptance of one-half of the quantity originally desig- 
nated could be directly required without going through the form of alter- 
ing the standard. No just man could be imposed upon by this use of 
words in a double sense, where the same names were applied to denote 
different quantities of the same thing, nor would his condemnation of 
the wrong committed in such case be withheld because the attempt was 
made to conceal it by the jugglery of words. 

" The power of Congress to interfere with contracts for the payment of 
money is not greater or in any particular different from its power with 
respect to contracts for lands or goods. The contract is not fulfilled any 
more in one case than in the other by the delivery of a thing which is 
not stipulated, because by legislative action it is called by the same 
name. Words in contracts are to be construed in both cases in the sense 
in which they were understood by the parties at the time of the contract. 
" Let us for a moment see where the doctrine of the power asserted will 
lead. Congress has the undoubted right to give such denominations as it 
chooses to the coin struck by its authority, and to change them. It can 
declare that the dime shall hereafter be called a dollar, or, what is the 
same thing, it may declare that the. dollar shall hereafter be composed of 
the grains of silver which now compose the dime. But would anybody 
pretend that a contract for dollars, composed as at present, could be satis- 
fied by the delivery of an equal number of dollars of the new issue? I 
have never met any one who would go to that extent. The answer al- 
ways has been that would be too flagrantly unjust to be tolerated. Yet 
enforcing the acceptance of paper promises or paper dollars, if the prom- 
ises can be so called, in place of gold or silver dollars, is equally enforcing 
a departure from the terms of the contract, the injustice of the measure 
depauding entirely upon the actual value at the time of the promises in the 
market. Now reverse the case. Suppose Congress should declare that 
hereafter the eagle should be called a dollar or that the dollar should be 
composed of as many grains of gold as the eagle, would any body for a 
moment contend that a contract for dollars, composed as now of silver, 
should be satisfied by dollars composed of gold? I am confident that no 
judge sitting on this bench, and, indeed, that no judge in Christendom 
could be found, who would sanction the monstrous wrong by decreeing 
that the debtor could only satisfy his contract in such case by paying ten 
times the value originally stipulated. The natural sense of right which 
is implanted in every mind would revolt from such supreme injustice. 
Yet there cannot be one law for debtors and another law for creditors. If 
the contract can at one time be changed by congressional legislation for 
the benefit of the debtor, it may at another time be changed for the bene- 
fit of the creditor. 

"For acts of flagrant injustice such as those mentioned there is no au- 
thority in any legislative body, even though not restrained by any ex- 
press constitutional prohibition. For as there are unchangeable principles 



85 

of rifiht and morality, without which society would be impossible, and 
men would be but wild beasts preyinff ujjon each other, so there are fun- 
damental princij)les of eternal justice, upon the existence of which all 
constitutional <;overnment is founded, and without which yovernmeut 
would be an intolerable and hateful tyrainiy." 

Referriui;' to the asseited power of Coii2:rcss to require 
itf^ own pi'oniises to be received in discharge of its pre- 
vious ol)li<::ations, the Judge said : 

" It follows, then, logically, from the doctrine advanced by the major- 
ity of the court as to the power of Congress over the subject of legal 
tender, that Congress may borrow gold coin upon a pledge of the public 
faith to repay gold at the nuiturity of its obligations, and yet, in direct 
disregard of its pledge, in open violation of faith, may compel the lender 
to take, in place of the gold stipulated, its own i)romises : and that legis- 
lation of this character would not be in violation of the Constitution, but 
in harmony with its letter and spirit. 

" What is this but declaring that repudiation by the government of 
the United States of its s'olemn obligations would be constitutional? 
Whenever the fultillment of the obligation in the manner stipulated is 
refused, and the acceptance of something different from that stipulated 
is enforced against the will of the creditor, a breach of faith is committed ; 
and to the extent of the difference of value between the thing stipulated 
and the thing which the creditor is compelled to receive, there is repudi- 
ation of the original obligation. I am not willing to admit that the Con- 
stitution, the boast and glory of our country, would sanction or permit 
any such legislation. Eepudiation in any form, or to any extent, would 
be dishonor, and for the commission of this public crime no warrant, in 
my judgment, can ever be found in that instrument." 

And, referring to the argument that Congress can reg- 
uUite the aUoy of the coins issued under its authority, and 
luis exercised its power in that respect without question, 
by diminishing in some instances the actual quantity of 
gold or silver they contain, the Judge said : 

" Undoubtedly Congress can alter the value of the coins issued by its 
authority by increasing or diminishing, from time to time, the alloy they 
contain, just as it may alter, at its pleasure, the denominations of the 
several coins issued, but there its power stops. It cannot make these al- 
tered coins the equivalent of the coins in their previous condition ; and, 
if the new coins should retain the same names as the original, they would 
only be current at their true value. Any declaration that they should 
have any other value would be inoperative in fact, and a monstrous dis- 
regard by Congress of its constitutional duty. The power to coin money, 



as already cleclaretl by this covirt, is a great trust devolved upon Congress, 
carrying with it the duty of creating and maintaining an uniform stand- 
ard of value throughout the Union, and it would be a manifest abuse of 
this trust to give to the coins issued by its authority auy other than their 
real value. By debasing the coins, when once the standard is tixed, is 
meant giving to the coins, by their form and impress, a certificate of their 
having a relation to that standard different from that which, in truth, 
they possess ; in other words, giving to the coins a false certificate of their 
value. Arbitrary and profligate governments have often resorted to this 
miserable scheme of robbery, which Mills designates as a shallow and 
impudent artifice, the ' least covert of all modes of knavery, which con- 
sists in calling a shilling a pound, that a debt of one hundred pounds 
may be cancelled h)y tlie payment of one hundred shillings.' " 

The Judge concluded his opinion as follows : 

" I know that the measure, the validity of which I have called in 
question, was passed in the midst of a gigantic rebellion', when even the 
bravest hearts sometimes doubted the safety of the Republic, and that 
the patriotic men who adopted it did so under the conviction that it 
would increase the ability of the government to obtain funds and supplies, 
and thus advance the national cause. Were I to be governed by my ap- 
preciation of the character of those men, instead of my views of the re- 
quirements of the Constitution, I should readily assent to the views of the 
majority of the court. But, sitting as a judicial officer, and bound to 
compare every law enacted by Congress with the greater law enacted by 
the people, and being unable to reconcile the measure in question with 
that fundamental law, I cannot hesitate to pronounce it as being, in my 
judgment, unconstitutional and void. 

"In the discussions which have attended this subject of legal tender 
there has been at times what seemed to me to be a covert intimation, 
that opposition to the measure in question was tlie expression of a spirit 
not altogether favorable to the cause, in the interest of which that 
measure was adopted. All such intimations I repel with all the energy I 
can express." I do not yield to any one in honoring and reverencing the 
noble and patriotic men who were in the councils of the nation during 
the terrible struggle with the rebellion. To them belong the greatest of 
all glories in our history, — that of having saved the Union, and that of 
having emancipated a race. For these results they will be remembered 
and honored so long as the English language is spoken or read among 
men. But I do not admit that a blind approval of every measure which 
they may have thought essential to put down the rebellion is any evi- 
dence of loyalty to the country. The only loyalty which I can admit 
consists in obedience to the Constitution and laws made in pursuance 
of it. It is only by obedience that affection and reverence can be shown 
to a superior having a right to command. So thought our great Master 
when he said to his disciples : ' If ye love me, keep my commandments.' " 



87 



TiTR LE(!ISLAT[VE PoWKll OF 'I'lIK I N'Slltd KNT S'I'ATKS DUlUxXG 

TifK Civil AVak, and tiik kxtk.nt to which thk Confed- 

KUATK (ioVKltX.MK.NT COlLI) P.H F. IK; ARDKD AS A ] )i: FaCTO 
CJOVKIIXMKNT. 

Tlie states do not (lorive their powers iVom the general 
government. Thirteen of them existed before that gov- 
ernment was formed ; and the others have come under it 
with simihir powers and rights. Tf there were no States 
tliere wonhl of course he no such pohtieal organization as 
the United States. If the Union were destroyed the States 
as independent pohtieal communities would remain, though 
a government hke that of the Union would be necessary 
to their prosperity. That government preserves peace 
among them, thus ensuring domestic tranquillity, reg- 
ulates commercial intercourse between them, secures to 
citizens of the several States equality of privileges and 
immunities in all of them, and exercises control over 
foreign atiairs and matters of general concern, which could 
not be managed by the States acting separately, except in 
a few particulars, without great embarrassment and difh- 
culty. It is essential, therefore, as all must see, to the 
whole country. But as the original States existed before 
the Constitution, and the States subsequently formed have 
been admitted into the Union upon terms of equality with 
them — all possess the attributes and powers of distinct 
pohtieal communities, except as limited and restrained by 
that insti-ument. When the civil war broke out the char- 
acter of the insurgent States as such communities was not 
changed. They retained and exercised the powers pre- 
viously possessed, which were essential to the security of 
persons and property, the preservation of order, and the 
due administration of justice. Their attempt to sever their 
relations to the government of the Union and to form a 
confederation wdth a part only of the States, and a new 
central government for themselves, could have, under the 
Constitution, no validitv. To those who regard that in- 



88 

strument as creating a perpetual Union, to be dissolved 
only by the consent of tlie people of the several States, 
this new confederation could be nothing more than a re- 
bellious organization — treasonable in its designs and ac- 
tions — to be suppressed, if necessary, b}" armed force. That 
instrument prohibits any treaty, alliance, or confederation 
between one State and another, and the new confederation 
was in open defiance and contempt of this prohibition. It 
also declares that the Constitution, and the laws of the 
United States made in pursuance thereof, shall be the su- 
preme law of the land. The new confederation denied this 
supremacy, repudiated the authority of the Constitution and 
of the laws passed in pursuance thereof, and endeavored 
to maintain its position by force of arms. The United 
States could, therefore, only treat it, and the government 
created by it, as the military representative of the insur- 
rection against their authority. The concession of bel- 
ligerent rights gave to its armed forces in the conduct of 
the war the position and rights of parties engaged in law- 
ful warfare. But no further recognition was ever extended 
to it. Its legislation was never treated as valid, and when 
its forces were overthrown, its whole organization dis- 
appeared. 

The insurgent States, however, were in a ditierent posi- 
tion. They remained as previously to the war, with similar 
legislative powers, their acts being invalid only so far as 
they impaired or tended to impair the supremacy of the 
government of the Union or the rights of loyal citizens. 

The Constitution, after delegating to the Congress of 
the United States certain enumerated powers, declares 
that it may make any laws necessary or proper to carry its 
powers into execution. Judge Field was always a "Union 
man," and when the rebellion broke out, he never hesi- 
tated a moment to give his earnest support to the govern- 
ment for its suppression. He had no patience with the 
doctrine of non-coercion, and denounced it as the sugges- 
tion of treason, or the utterance of stupidity. And to 



89 

this (lay lie never refers to it except with an ex[)ressioii 
of conteni]>t. In a eliari;-e to a grand jnry at Pan Fran- 
cisco in 1872, in alluding to the results of the war, he thus 
spoke of it : 

"That war has done away forever with the miserable notion, which 
extensively prevailed at the time of the outbreak of the rebellion, that 
the general government, beeause it was formed by the people of the sev- 
eral States, sovereign in some of their powers, should not exert any co- 
ercion to enforce its laws. No one is now willing to run a tilt against 
common sense by adducing any argument in support of this absurd po- 
sition ; and the war has demonstrated that the general government pos- 
sesses all the power necessary to enforce obedience to its laws throughout 
the limits of the Republic." 

The views stated as to the legislative powei-s of the in- 
surgent States, and the character given to the Confed- 
erate government as the representative of tlie military 
insurrection, have been sanctioned by the Supreme Court 
in many decisions, notwithstanding some hesitation and 
some doubtful expressions in the early cases. These de- 
cisions deny all validity to any legislative action of the 
States favoring the insurrection, or against the rights of 
loyal citizens, but they sustain all other acts of ordinary 
legislation; and they treat the government of the Confed- 
erate States as a wholly illegal and traitorous combination. 
In Texas vs. White, at the December term, 1868, Chief 
Justice Chase, after observing that the Legislature of 
Te«^as, during the war, constituted one of the depart- 
ments of a state government established in hostility to 
the Constitution, and could not therefore l>e regarded in 
the courts of the United States as a lawful legislature, 
said that, as a department of the government having actual 
control of the State, he was of opinion that its acts, when 
not hostile to the United States, should be regarded as 
valid. Speaking for the court, he said : 

" It is not necessary to attempt any exact definitions within which the 
acts of such a state government must be treated as valid or invalid. It 
may be said, perhaps with sutftcient accuracy, that acts necessary to 
peace and good order among citizens — such, for example, as acts sanction- 
ing aiul protecting marriage and the domestic relations, governing the 



90 

course of descents, regnlatin<^ the conveyance and transfer of property, 
real and personal, and providing remedies for inj iiries to person and es- 
tate, and otlier similar acts, which wonld be valid if emanating from a 
lawful government — must be regarded, in general, as valid when pi'oceed- 
ing from an actual though unlawful government ; and that acts in fur- 
therance or support of rebellion against the United States, or intended to 
defeat the Just rights of citizens, and other acts of like nature, must, in 
general, be regarded as invalid and void." — (7 Wall., 733.) 

In Horn vs. Lockliai't, before the court at the October 
tei-Di of 1873, these views are reasserted with still greater 
emphasis. There a bill had been tiled by the legatees in 
a will to compel an executor in-Alal)ama to account for 
funds received by him belonging to the estate of his tes- 
tator, and to pay to them their distributive shares. He 
had, under a law of that State, invested the funds in bonds 
of the Confederate States, and the investment was ap- 
proved by the decree of the probate court; and the ques- 
tion w\as whether this disposition of the moneys received, 
and the decree of the court, were a sutiicient answer to the 
suit of the legatees to compel an accounting. In reply 
to it. Judge Field, speaking for tbe court, said : 

" The bonds of the Confederate States were issued for the avowed 
purpose of raising funds to prosecute the war then waged by them 
against the government of the United States. The investment was, 
therefore, a direct contribution to the resources of the Confederate gov- 
ernment ; it was an act giving aid and comfort to the enemies of the 
United States ; and the invalidity of any transaction of that kind, from 
whatever source originating, ought not to be a debatable matter in the 
courts of the United States. No legislation of Alabama, no. act of its 
convention, no judgment of its tribunals, and no decree of the Confed- 
erate government could make such a transaction lawful. 

" We admit that the acts of the several States in their individual ca- 
pacities — executive, judicial, and legislative — during the war, so far as 
they did not impair or tend to impair the supremacy of the national 
authority, or the just rights of citizens under the Constitution, are, in 
general, to be treated as valid and binding. The existence of a state of 
insurrection and war did not loosen the bonds of society, or do away with 
civil government or the regular administration of the law. Order was to 
be preserved, police regulations maintained, crime prosecuted, property 
protected, contracts enforced, marriages celebrated,, estates settled, and 
the transfer and descent of property regulated precisely as in time of 
peace. No one, that we are aware of, seriously questions the validity of 



01 

judicial or leji'i8lati\e acts in the iiisiirn-ctiimary Stads ((lucliinji tlicse 
and kindred subjects, where they were not hdslile in tlicir purpose or 
mode of enforeenient to the anthority of tiu' national jinvcrnincut, and 
did not impair the rijihts of eitizens under the Constitution/' — (17 NN'all., 

r>s(i. ) 

111 ['nitcd States vs. Insurance Companies, at the Octo- 
]>vv term of 1874, these views were reiterated and affirmed, 
the court citing- witli ;i[)[)r()li:iii()U tltc [»;issa,<;-cs iVoiii the 
opinions in Texas vs. Wliite and l.ockhart vs. Jlorn, given 
al)ove. These corporations, created hy tlie Legishiture of 
(Tcorgia during- tlie war, were held to lie lawful institu- 
tions, c:4)a])le of suing in the federal courts, not heing in 
their purposes or operation hostile to the I^nion, or in con- 
flict with the Constitution, hut creatures of ordinary leg- 
islation, such as might have heen created if there had heen 
no war or attempted secession. In giving the opinion of 
the court, Judge Strong, after making the al)ove and other 
similar citations, said : 

"After these emphatic utterances controversy upon this subject should 
cease. All the enactments of the dc facto legislatures in the insurrec- 
tionary States during the war, which were not hostile to the Union or 
to the authority of the general government, and which were not in con- 
flict with the Constitution of the United States, or of the States, have 
the same validity as if they had l)een enactments of legitimate legisla- 
tures. Any other doctrine than this would work great and unnecessary 
hardshii) upon the people of those States, without any corresponding 
benefit to the citizens of other States, and without any advantage to the 
national government." — (22 Wall., 103. See also Sprott vs. United States, 
20 Wall., 464.) 

The character in wdiich the go^'ernmeut of the Confed- 
erate States was to Ijc regarded, in view of the concession 
of hehigerent rights to its armed forces, was tlie suhjectof 
frequent consideration by the Supreme Court. In Thoi-ing- 
ton vs. Smith, at the Deceml)er term of 1868, the Chief 
Justice, in dehvering the opinion of the court, spoke of the 
different kinds of de facto governments, and compared the 
government of the Confederate States with the govern- 
ment imposed upon Castine, in Maine, by the Bi'itish forces 
in 1814, and that imposed upon Tampico, in Mexico, by the 



92 

Americans in 1846, and designated it as a government of 
paramount force, to which obedience, being a matter of 
necessity, became a duty for the preservation of civil order; 
but said that by the government of the United States it had 
been regarded, from an early period of the civil war to its 
close, as simply the military representative of the insurrec- 
tion against their authority — (7 Wall., 9.) But by far the 
most thorough and exhaustive consideration of the char- 
acter of the government of the Confederate States, and its 
relation to the government of the Union, is contained in the 
opinion in Brufiy vs. AVilliams, decided at the October term 
of 1877. In that case the question arose as to the validity of 
an act of the Confederate States, during the war, confiscating 
a debt due from a citizen of Virginia to a citizen of Penn- 
sylvania. The former having died, an action was brought 
after the war against his administrator to recover the del)t. 
The defendant took the ground that the enactment of 
the Confederate States was that of an independent nation, 
and must be so treated. His contention was substantially 
this : that the Confederate government, from April, 1861, 
until it was overthrown in 1865, was a government de facto, 
complete in all its parts, exercising jurisdiction over a well- 
defined territory, which included that portion of Virginia 
where the deceased resided, and as such de facto govern- 
ment it had engaged in war with the United States ; and 
possessed and was justified in exercising within its territo- 
rial limits all the rights of war which belonged to an inde- 
pendent nation, and among them, that of confiscating debts 
due by its citizens to its enemies. 

In support of this position reference was made to numer- 
ous instances of de facto governments which had existed 
in England and in other parts of Europe and in America, 
to the doctrines of jurists and writers on public law re- 
specting the powers of such governments, and the validity 
accorded to their acts, to the opinion of the Supreme Court 
of the United States, in Thorington vs. Smith and in the 
Prize Cases, to the concession of belligerent rights to the 



93 

ContedcM'iito goviM-iuiioiit, and to the action of tlio States 
diirinu' the revolutionaiy war and tlic [u'riod ininu'diately 
followinii' it. 

In re[)ly to this position, Jud«;\' Field, in (U'livering the 
o[)iiuon ot" the court said as follows : 

'■ We do not question tlie doctrines of public law which have been in- 
voked, nor their application in proper cases, but it will be found upon 
examination that there is an essential diiference between the government 
of the Confederate States and those de facto governments. The latter 
are of two kinds. One of them is such as exists after it has expelled the 
regularly constituted authorities trom the seats of power and the public 
offices, and established its own functionaries in their places, so as to repre- 
sent in fact the sovereignty of the nation. Such was the government of 
England under the commonwealth established upon the execution of the 
King and the overthrow of the loyalists. As far as other nations are con- 
cerned such a government is treated as in most respects possessing rightful 
authority ; its contracts and treaties are usually enforced ; its acquisitions 
are retained ; its legislation is in general recognized ; and the rights ac- 
quired under it are, with few exceptions, respected after the restoration of 
the authorities which were expelled. All that counsel sa^- of de facto gov- 
ernments is justly said of a government of this kind. But the Confederate 
government was not of this kind. It never repi-esented the nation ; it never 
expelled the public authorities from the country ; it never entered into any 
treaties; nor was it ever recognized as that of an independent power. It 
collected an immense military force and temporarily expelled the author- 
ities of the United States from the territory over which it exercised an 
usmped dominion ; but in that expuLsion the United States never ac- 
quiesced ; on the contrary, they immediately resorted to similar force to re- 
gain possession of that territory and re-establish their authority, and they 
continued to use such force until they succeeded. It would be useless 
to comment upon the striking contrast between a government of this 
nature, which with all its military strength never had undisputed posses- 
sion of power for a single day, and a government like that of the Com- 
monwealth of England under Parliament or Cromwell. 

"The other kind oi de facto governments, to which the doctrines cited 
relate, is such as exists where a portion of the inhabitants of a country 
have separated themselves from the parent state and established an inde- 
pendent government. The validity of its acts, both against the parent 
state and its citizens or subjects, depends entirely upon its ultimate suc- 
cess. If it fail to establish itself permanently, all such acts perish with 
it. If it succeed and become recognized, its acts from the conuuencemeut 
of its existence are upheld as those of an independent nation. Such was 
the case of the state governments under the old confederation on their sep- 
aration from the British Crown. Having made good their declaration of 
independence, everything they did from that date was as valid as if their 



94 

independence had been at once acknowledged. Confiscations, therefore, 
of enemy's property made by them were sustained as if made by an inde- 
pendent nation. But if they liad failed in securing their independence, 
and the authority of the King had been re-established in this country, no 
one would contend that their acts against him, or his loyal subjects, could 
have been upheld as resting upon any legal foundation. 

" When a rebellion becomes organized and attains such proportions as 
to be able to put a formidable military force in the field, it is usual for the 
established government to concede to it some belligerent rights. This 
concession is made in the interests of liumanity, to prevent the cruelties 
which would inevitably follow mutual reprisals and retaliations. But 
belligerent rights, as the terms import, are rights which exist only during 
war; and to what extent they shall be accorded to insurgents depends 
upon the considerations of justice, humanity, and policy controlling the 
government. The rule stated by Vattel, that the justice of the cause be- 
tween two enemies being by the law of nations reputed to be equal, what- 
soever is permitted to the one in virtue of war is also permitted to the 
other, applies only to cases of regular war between independent nations. 
It has no application to the case of a war between an established govern- 
ment and insurgents seeking to withdraw themselves from its jurisdiction, 
or to overthrow its authority.* The concession made to the Confederate 
government in its military character was shown in the treatment of cap- 
tives as prisonei'S of war, the exchange of prisoners, the recognition of 
flags of truce, the release of officers on parole, and other arrangements 
having a tendency to mitigate the evils of the contest. The concession 
placed its soldiers and militaiy officers in its service on the footing of those 
engaged in lawful war, and exempted them from liability for acts of legit- 
imate warfare. But it conferred no further immunity or any other rights. 
It in no respect condoned acts against the government not committed by 
armed force in the military service of the rebellious organization. It sanc- 
tioned no hostile legislation ; it gave validity to no contracts for military 
stores; and it impaired in no respect the rights of loyal citizens as they 
had existed at the commencement of the hostilities. Parties residing in 
the insurrectionary territory, having property in their possession as trus- 
tees or bailees of loyal citizens, may in some instances have had such 
property taken from them by force, and in that event they may perhaps 
be released from liability. Their release will depend upon the same 
principles which control in ordinary cases of violence by an unlawful 
combination too powerful to be successfully resisted. 

*'But debts not being tangible things subject to physical seizure and 
removal, the debtors cannot claim release from liability to their creditors 
by reason of the coerced payment of equivalent sums to an unlawful 
combination. The debts can only be satisfied when paid to the creditors 
to whom they are due, or to others by direction of lawful authority. Any 

* Halleck's Inter. Law, ch. xiv., sec. 9. 



9;-) 



sum which the uiilawi'ul coinljination may liavc conipclUnl the dehtors to 
pay to its agents on account of debts to h)yal citizens cannot have any ef- 
fect upon their obligations ; they remain subsisting and unimpaired. Tlic 
coiutssion ofliclligerent riglitsto the rebellious organization yielded noth- 
ing to its iiiitcnsions of legality. If it had .succeeded in its contest it would 
have protected the debtor from further claim for the debt, but as it foiled 
the creditor may have recour.se to the courts of the country as prior to the 
rebellion. It would be a strange thing, if the nation, after succeeding in 
suppressing the rebellion and re-establishing its authority over the insur- 
rectionary district, should by any of its tribunals recognize as valid the at- 
tempt of the rebellious organization to confiscate a debt due to a loyal cit- 
izen as a penalty for his loyalty. Such a thing would be unprecedented 
in the historj- of unsuccessful rebellions, and would rest upon no just 
principle. 

" Tlie immense power exercised by the government of the Confederate 
States for nearly four years, the territory over which it extended, the vast 
resources it wielded, and the millions who acknowledged its authority, pre- 
sent an imposing spectacle, well fitted to mislead the mind in considering 
the legal character of that organization. It claimed torejjresent an inde- 
pendent nation and to possess sovereign powers ; and as such to displace 
the jurisdiction and authority of the United States from nearly half of 
their territory, and instead of their laws to substitute and enforce those of 
its own enactment. Its pretensions being resisted, they were submitted to 
the arbitrament of w^ar. In that contest the Confederacy failed, and in its 
foilure its pretensions were dissipated, its armies scattered, and the whole 
fabric of its government broken in pieces. The very property it had 
amassed passed to the nation. The United States during the whole con- 
test never for one moment renounced their claim to supreme jurisdiction 
over the whole country, and to the allegiance of every citizen of the Re- 
public. They never acknowledged in any form, or through any of their 
departments, the lawfulness of the rebellious organization, or the validity 
of any of its acts, except so far as such acknowledgment may have arisen 
from conceding to its armed forces in the conduct of the war the standing ' 
and rights of those engaged in lawful warfare. They never recognized its 
asserted power of rightful legislation." 

The Judge then proceeded to show tliat there wixs noth- 
ing in confliet with these view\s in Thorington vs. Smith, 
or in the Prize Cases, or in Wheaton or Vattel, and tiien 
added, that it was unnecessary to pursue the sulijcct fur- 
ther; that— 

"\Yhatever de facto character may be ascribed to the Confederate gov- 
ernment consists solely in the fact, that it maintained a contest w ith the 
United States for nearly four years, and dominated for that period over 



96 

a large extent of territory. When its military forces were overtluown 
it utterly perished, and with it all its enactments." 

He concluded as follows : 

" Whilst thus holding that there was no validity in any legislation of the 
Confederate States which this court can recognize, it is proper to observe 
that the legislation of the States stands on very different grounds. The 
same general form of government, the same general laws for the admin- 
istration of justice and the protection of private rights, which had ex- 
isted in the States prior to the rebellion, remained during its continuance 
and afterwards. As far as the acts of the States did not impair or tend 
to impair the supremacy of the national authority or the just rights of 
citizens under the Constitution, they are, in general, to be treated as 
valid and binding." — (Citing from Horn vs. Lockhart, 76 U. S.) 



Protection from Military Arrest and Imprisonment dur- 
ing THE War of Citizens not in the Military Service, 
in States where the Civil Courts were open and in 
the Undisturbed Exercise of their Jurisdiction. 

After tliG decision of the Supreme Court in the Milligan 
case, at the Decemher term of 1865, declaring military 
commissions in the loyal States, for the trial of citizens 
not in the military service or prisoners of war, to be ille- 
gal, no attempt was made to bring the decrees of such 
irregular and unauthorized tribunals before the court. 
Their illegality was accepted without further contest. 
'But during the war there were in some instances arbitrary 
and oppressive acts committed in the loj^al States by military 
officers, particularly those filling the positions of provost- 
marshals, for which redress was sought by civil action. An 
instance of this kind was before the Supreme Court in 
Beckwith vs. Bean, at the October term of 1878. That 
action was brought against the provost-marshal and assist- 
ant provost-marshal of a military district embracing the 
State of Vermont, and was for an assault and battery upon 
the plaintiff, and his imprisonment in the state prison for 
several months — from ^November, 1864, to April, 1865 — 



97 

without process of law niid under cireuinstiinees of ii'reat 
cruelty and op[)ressi()n. it apjieared iVoin tlic cN'idcucc in 
the case that on the 11th of Noveiuber, 18G4, the plain- 
titf, whilst returning from a trip to Boston to liis home in 
Canada, where he temporarily' resided, though a citi/en of 
the United States, was arrested by one of the del'endants, 
the assistant provost-nuirshal, without any warrant <»r pro- 
cess of law, and detained until the following day ; that he 
was tlien forcibly taken by order of the other defendant, 
the provost-marshal, and placed in the state prison at 
AVindsor, where he remained until the 2<;th of April, 1865, a 
period of nearly five months, when he wuh admitted to bail 
and released from imprisonment; that during this period he 
w^as locked up at night, and for the first few days in the day- 
time also, in a narrow and scantily furnished cell, being one 
in which convicts were confined at night ; that after the 
first few days he w^as allowed, upon his complaint of the 
coldness of the cell, to spend tlie day in the shops where 
the convicts worked,. but lie was required to go out and to 
return wlieu they did, and at no time to he out of sight of a 
keeper, and not to go on the corridor or in the yard for ex- 
ercise ; that the food oftered to him was the fare served to 
the convicts, which he could not eat, and that aftei'wards 
he obtained his meals from the keeper's tal)le by paying 
a small sum each week ; and that during this period no 
complaint against him was filed with any nuigistrate ; and 
that he w-as simply held upon the order of the defendants. 
The excuse ofi'ered by them for this imprisonment and 
treatment of the plaintifi" was, that they suspected that he 
had aided or been privy to the desertion from the army of 
two substitutes, who had been furnished upon a contract 
with a substitute broker, and for whom the latter had paid 
$1,200, of wdiich sum |800 had been received by the 
plaintifi" and two others. Suspecting the plaintifi", the 
defendants determined to hold him in the state prison 
until they should coerce him to pay not merely what 
he had received, but what his supposed confederates 



98 

had received also. After he had been in tlie state prison 
for a few days, the provost-marslial called npon him, 
and verbally informed him that he was charged with 
aiding or being privy to the desertion of the substitutes, 
but that he would be discharged on payment of the $800, 
and $25 additional for expenses. The plaintiff protested 
that he was innocent of the charge and demanded a trial. 
He was told in reply that " he could not have a trial, and 
could not get one," but that his case would be reported to 
the officer's superiors. 

During his imprisonment he made constant efforts to 
obtain a trial, or release on bail which he was able and 
willing to furnish. But no trial was allowed him, and not 
until intercession was made on his behalf at Washington 
by a member of Congress was he permitted to give bail 
and be discharged. When the grand jury of the United 
States court subsequently met in Vermont they found no 
cause for prosecution against him, although the provost- 
marshal made a statement of the case to them. 

At the time of his arrest and during his imprisonment 
there was no rebeUion in the State of Vermont against 
the laws and government of the United States, nor were 
there any military operations carried on within its limits. 
The courts of justice, both federal and state, were open and 
in the full exercise of their jurisdiction; and the plaintiff 
was not in the mihtary service or in any way connected 
with such service; and for the offence of which he was sus- 
pected, or for any other offence, could have been brought 
before them on any day of tlie year. By his imprison- 
ment, and the report that he was in the state prison, his 
business was ruined, his personal property and furniture 
were seized by creditors and sacrificed at sheriff's sale, 
and his wife was compelled to leave his home and return 
to her friends in Vermont. 

On the trial of the action, the defendants relied for their 
defence upon the fourth section of the act of Congress of 
March 3d, 1863," relating to habeas corpus, and regulating 



99 

judicial pi'occodiiiii's in certain i-ases;'' and u])(in the act of 
March iM, ISCT, to dci-larc valid and con.'lusivc certain 
proclamations of the President, and acts done in pursuance 
thereof, or of his orders in the suppression of the late re- 
bellion; contending that under them the defendants were 
to be presumed to have acted by the orders of the Presi- 
dent, and that they were thereby jnstitied for the matters 
complained of. And if they were not thus Jnstitied, then 
they sought to give in evidence in mitigation of damages 
the testimony of certain parties, which was discovered 
after the arrest and imprisonment of the plaintiti", tending 
to establish facts, which, if known at that time, would have 
justilied, to some extent, their suspicions as to his com- 
plicity in the escape of the substitutes. The court below, 
in refusing to give certain instructions asked, held that 
the defendants were not justilied imder the acts of Con- 
gress and the proclamations of the President mentioned. 
It also held that evidence of the possible guilt of the 
plaintiti", discovered after the commission of the grievances 
complained of, was inadmissible in mitigation of damages. 

The plaintitr accordingly obtained a verdict and judg- 
ment for $15,000 damages, and the case was carried to the 
Supreme Court. There the Attorney-(Teneral appeared 
for the military officers, and contended, substantially, as 
follows : 

1st. That the defendants were to be presumed to have 
acted, in the arrest and imprisonment of the plaintiti", l)y 
the orders of the President; and that by the acts of Con- 
gress they were justified for the matters complained of. 

2d. That the evidence of the possible guilt of the plain- 
titf, discovered after the commission of the grievances, 
was admissible in mitigation of damages. 

The first proposition was not passed upon, the court ob- 
serving that the instruction requested ignored the evidence 
introduced, that the defendants had, under circumstances 
of oppression and wantonness, and by improper and 
fraudulent representations, procured their superior otficers 



100 

" to continue the imprisonment longer than necessary, and 
prevented them from having a speedy trial " for the oftence 
charged; and on that ground, and not on the ground that 
the acts of Congress justifying the conduct of the defend- 
ants were invalid, or that the orders of the President, if 
issued, would have aftbrded no justification to them, the 
court overruled the objection to tlie ruling of the court 
below. But the second proposition the court sustained, 
and, for the refusal of the court below to admit the subse- 
quently discovered evidence, reversed the judgment and 
ordered a new trial. 

From this decision Judges Clitlbrd and Field dissented. 
Judge Field giving an elaborate dissenting opinion, in 
which the invalidity of the acts of Congress, and of any 
orders of the President, if issued, to justify the conduct 
of the defendants, is conclusively shown. The subject is 
so important, and is so fully considered, that no apology is 
necessary for extended citations from the opinion. Both 
propositions of the Attorney-General were discussed at 
length. 

Upon the first proposition the Judge, after citing the 
acts of Congress, said as follows : 

" These statutes, as is apparent on their face, extend only to acts done 
in compliance with express orders or proclamations of the President. 
They do not cover acts done by persons upon their own will and discre- 
tion, who may have been at the time in the service of the government, 
simply because they were under the general direction of the President as 
commander-in-chief They were not intended to protect against judicial 
inquiry and redress every act of a surbordinate in the military service in 
suppressing or punishing what he may have regarded as a disloyal practice, 
no matter how fiagiTint the outrage he may have thus committed against 
life, liberty, or property. 

" It is not pretended that any proof was produced that the arrest and 
imprisonment of the plaintiff were made under any express order or 
proclamation of the President ; but it is contended by the Attorney- 
General, that under the last clause of the act of 1867 it is to be presumed 
that their action [the defendants'] was authorized by the President, and 
that they are thus relieved from accountability for it. 

"The court below held, that assuming the construction placed by the 
Attorney-General upon the statute to be correct, and that from the com- 



101 

mission of the act the presuni])tion arose that it was authorized by th(3 
President — the act thus presumptively establishing its own validity — the 
presumption in this case was repelled, inasmuch as it api)eared in evi- 
dence by whose direction the orders were issued under which the plain- 
lift' was arrested and imprisoned. It appeared that they never originated 
witli or liad the sanction of tlie President. 

"If however, the court below erred in this resi)oct, there is another and 
a conclusive answer to the defence — one which renders futile and abortive 
all attempts to justify the action of tlie defendants under any presumed 
orders of the President — and that is, that it was not within the compe- 
tency of the President or of Congress to authorize or approve the acts here 
complained of, so as to shield the perpetrators from responsibility. 

'"Persons engaged in the military service of the United States are, of 
course, subject to what is termed military law ; that is, to those rules and 
regulations which Congress has provided for the government of the army 
and the punishment of offences in it. Congress possesses authority un- 
der the Constitution to prescribe the tribunals, as well as the manner in 
which otfenders against the discipline of the army and the laws for the 
protection of its men and officers shall be summarly tried and punished ; 
and to the jurisdiction thus created, all persons in the military service 
are amenable. But that jurisdiction does not extend to persons not in 
the military service, who are citizens of States where the civil courts are 
open. 

" It may be true, also, that on the actual theatre of military operations, 
what is termed martial law, but which would be better called martial 
rule, for it is little else than the will of the commanding general, applies 
to all persons, whether in the military service or civilians. It may be true 
that no one, whatever his station or occupation, can there interfere with or 
obstruct any of the measures deemed essential for the success of the army, 
without subjecting himself to immediate arrest and summary puni.shment. 
The ordinary laws of the land are there superseded by the laws of war. The 
jurisdiction of the civil magistrate is there suspended, and military au- 
thority and force are substituted. The success of the army is the controll- 
ing consideration, and to that everything el.se is required to bend. To 
secure that success, persons may be arrested and confined, and property 
taken and used or destroyed at the command of the general, he being re- 
spon.sible only to his superiors for an abuse of his authority. His orders, 
from the very necessity of the case, there constitute legal justiiication for 
any action of his officers and men. This martial rule — in other words, 
this will of the commanding general, except in tlie country of the enemy 
occupied and dominated by the army — is limited to the field of military 
operations. In a country not hostile, at a distance from the movements 
of the army, where they cannot be immediately and directly interfered 
with, and the conrts are open, it has no existence. 

" The doctrine sometimes advanced by men, with more zeal than Avis- 
doni, that whenever war exists in one part of the country, the constitu- 



102 

tional guaranties of personal liberty, and of the rights of property, are 
suspended everywhere, has no foundation in the principles of the com- 
mon law, the teachings of our ancestors, or the langiiage of the Constitu- 
tion, and is at variance with every just notion of a free government. 
Our system of civil polity is not such a rickety and ill-jointed structure, 
that when one part is disturbed the whole is thrown into confusion and 
jostled to its foundation. The fact that rebellion existed in one portion 
of the country could not have the effect of superseding or suspending 
the laws and Constitution in a loyal portion widely separated from it. 
The war in the Southern States did not disturb Vermont from her con- 
stitutional ijropriety. She did not assent to the theory that war and dis- 
turbance elsewhere could destroy the security given by her laws and 
government. The same juridical institutions, and the same constitu- 
tional guaranties for the protection of the personal liberty of the citizen, 
with all the means for their enforcement, remained there as completely as 
before ; and the Constitution and laws of the United States were as capa- 
ble of enforcement in all their vigor in that State during the war as at 
any time before or since. The arrest and imprisonment of the plaintiff, 
even if made by direct order of the President, were, therefor, in plain 
violation of the fifth constitutional amendment, which declares that no 
person shall be deprived of his liberty without due process of law. No 
mere order or proclanuition of the President for the arrest and imprison- 
ment of a person not in the military service, in a State removed from the 
scene of actual hostilities, where the courts are open and in the unob- 
structed exercise of their jurisdiction, can constitute due process of law ; 
nor can it be made such by any act of Congress. Those terms, as is 
known to every one, were originally used to express what was meant by 
the terms 'the law of the land ' in Magna Charta, and had become syn- 
onymous with them. Tliey were intended, as said by this court, ' to se- 
cure the individual from the arbitrary exercise of the powers of govern- 
ment, unrestrained by the established principles of private right and dis- 
tributive justice.'* They were designed to prevent the government from 
depriving any individual of his rights except by due course of legal pro- 
ceedings, according to those rules and principles established in our sys- 
tems of jurisprudence for tlie protection and enforcement of the rights of 

all persons. 

" To me. therefore, it is a marvel, that in this country, under a Constitu- 
tion ordained by men who were conversant with the principles of Magna 
Charta, and claimed them as their birthright — a Constitution which de- 
clares in its preamble that it is established ' to secure the blessings of lib- 
erty to ourselves and our posterity ' — it could ever be contended that an 
order of the Executive, issued at his will, for the arrest and imprisonment 
of a citizen, where the courts are open and in the full exercise of their 
jurisdiction, is due process of law, or could ever be made such bj^ an act of 

* Bank of Columbia vs. Okely, 4 Wheat., 235. 



103 

CongTcss. I certainly never supposed that such a proposition eould be se- 
riously asserted before the highest triljunal of the Kepublie by its chief 
legal officer. I had supposed that we could justly claim that in America, 
under our republican government, the personal liberty of the citizen was 
greater and better guarded than that of the subject in England. It is 
only the extraordinary claim made by the counsel of the government in 
this case which justifies any argument in support of principles so funda- 
mental and heretofore so universally recognized. It may be necessary at 
times with respect to them, as it is necessary at times with respect to ad- 
mitted principles of morality, to re-state them in order to rescue them 
from the forgetfulness caused liy their universal admission. 

" The assertion that the power of the government to carry on the war 
and suppress the rebellion, would have been crippled and its efficiency 
impaired, if it could not have authorized the arrest of persons and their 
detention without examination or trial, on suspicion of their complicity 
with the enemy, or of disloyal practices, rests upon no foundation whatever, 
so far as Vermont was concerned. There was no invasion or insurrection 
there, nor any disturbance which obstructed the regular administration of 
justice. A claim to exemption from the restraints of law is always made 
in support of arbitrary power, whenever unforeseen exigencies arise in the 
aftairs of government. It is inconvenient ; it causes delay ; it takes time 
to furnish to committing magistrates evidence which, in a country where 
personal liberty is valued and guarded by constitutional guaranties, 
Avould justify the detention of the suspected ; and, therefore, in such ex- 
igencies, say the advocates of the exercise of arbitrary power, the evi- 
dence should not be required. A doctrine more dangerous than this to 
free institutions could not be suggested by the wit of man. The proceed- 
ings required by the general law for the arrest and detention of a party 
for a public ofitnce— the charge under oath, the examination of witnesses 
in the presence of the accused, with the privilege of cross-examination, 
and of producing testimony in his favor, creating the objectionable de- 
lays — coiistitute the shield and safeguard of the honest and loyal citizen. 
They were designed not merely to insure ijunishment to the guilty, but 
to insure protection to the innocent, and without them every one would 
hold his liberty at the mercy of the government. ' All the ancient, hon- 
est, juridical principles and institutions of England,' says Burke — and it 
is our glory that we inherit them — ' are so many clogs to check and retard 
the headlong course of violence and oppression. They were invented for 
tliis one good purpose, that what was not just should not be convenient.' * 
Whoever, therefore, favors their subversion or suspension, except when in 
the presence of actual invasion or insurrection the laws are silent, is con- 
sciously or unconsciously an enemy to the Republic. 

" If neither the order of the President nor the act of Congress could 
suspend, in a State where war was not actually waged, any of the guar- 

* Letter to the Sheriffs of Bristol. 



10-1 

anties of the Coustitution intended tor the protection of the plaintiff 
from nnlawfnl arrest and imprisonment, neither could they shield the de- 
fendants I'rom responsibility in disregarding them. Protection against 
the deprivation of liberty and property would be defeated if remedies for 
redress, where such deprivation was made, could be denied." 

Ill answer to the second proposition of the Attorne}'- 
General, that evidence of the possible guilt of the plain- 
tiff discovered after the commission of the grievances com- 
jDlained of, was admissible in mitigation of damages, the 
Judge said as follows : 

"As facts not known at that time [when the grievances were com- 
mitted] could not have inlluenced the conduct of the defendants, it is 
difficult to comprehend how proof of those facts could be received to 
show the motives — of malice or good faith — with which they then acted. 

" Independently of this consideration, it seems to me, that the evidence 
of the guilt or innocence of the plaintitf was entirely immaterial. Assum- 
ing that he was guilty of the complicity alleged — thai he had admitted 
his guilt to the defendants — that circumstance would not have justified 
their conduct in the slightest degree. They would have been equally 
bound upon that assumption, as they were in fact bound — no more and 
no less — to take the plaintiff before the pi'oper magistrate to be proceeded 
against according to law. To keep him for nearly six months in the 
state prison among convicts, without taking him before the proper officer 
to be held to bail or bi'ought to trial, was a gross outrage upon his rights, 
whether he were guilty or innocent. There were magistrates in every 
county of the State competent to act upon the charge, and the district at- 
torney was ready to take control of all cases against the laws of the 
United States and prosecute them. The defendants not only omitted 
this plain, Imperative duty, but detained the plaintiff in prison, not with 
a view to punish him for the offence of which they suspected him to be 
guilty, but to coerce from him payment of money alleged to be due by him 
and others to a substitute broker. "Where is the law or reason for allow- 
ing one, who by force holds another in confinement in order to extort the 
payment of money, to show in extenuation of his conduct that the man 
had been guilty of some offence against the law ? The answer in all such 
cases should be, that the law attaches the proper penalties to its viola- 
tion, and appoints the ministers bj^ whom those penalties are to be en- 
forced ; and whenever they can act, whoever usurps their authority and 
attempts to punish supposed offenders, in aiiy other mode than that pro- 
Aided by law, is himself a criminal. For, as it was said by a distin- 
guished statesman and jurist of England, when the laws can act, 'every 
other mode of punishing supposed crimes is itself an enormous crime.' 

" The doctrine announced by the decision of the court in this case is 
nothing less than this: that a gross outrage upon the rights of a person 



105 

may be extenuated or excused by proof that tlie outra<;ed party had him- 
self been guilty of some crime, or, at least, that the perpetrators of the 
outraiie had reason to suspect that he had. This doctrine is prejitiant 
with evil. I know not why, under it, the violence of inol)s, excited 
ajiainst fiuilty or suspected parties, may not find extenuation. Let sucli 
a doctrine be once admitted, and a greater l)Iow will be dealt to personal 

security than any given to it for a century. 

'"It will appear from an examination of the adjudged cases, as it must 
on princijile, that when illegal measiires have been taken to redress pri- 
vate wrongs, or to punish tor oifences against the public, it is inadmissi- 
ble to prove, in mitigation of actual or exemplary damages, that the 
party injured was guilty of the otfence or misconduct constituting the 
l)rovocation to the illegal measures, except where the provocation is of a 
personal character calculated to excite passion, and so recent as to create 
the presumption that the acts complained of were committed under the 

influence of the p;ission thus excited. -They are founded upon the 

plain principle, that no one can be allowed to undertake the punishment 
of wrongdoers according to his own notions ; that the administration of 
punitive ju.stice for all offences is conlided by the law to certain public 
otiicers, and whoever a.ssumes their functions without being authorized, 
usurps the prerogative of sovereign power and becomes himself amena- 
ble to puni.shment. He shall not be permitted to set up the real or sup- 
posed oifences of others to justify his own wrong." 



PROTEt'TIOX TO OFFICERS AND SoLDIERS OF THE ArMY OF 

THE United States in the Enemy's Country during 
THE War, 

In the prosecution of the late war the arniie.'^ of tlie 
United Spates were, as a matter of course, sent into the 
States in insurrection. The destruction wliich nocessaril}^ 
attended tlieir inarch, too-other with acts of violence of 
individual soldiers, ^^■hieh no disci[)line could wholly pre- 
vent, produced the natural result — -great hitterness and 
hostility on the part of the inhabitants of the invaded 
country. With the close of the war this feeling did not 
entirely cease, and wliere a crime had been committed the 
wdiole community would naturally desire to have its per- 
petrator punished. Where a pei'sonal wrong had been 
sutfered, or a wanton injury to private property com- 
mitted, the sutlx'rer would naturally consider the possi- 



106 

bility of redress in the courts. Hence criminal prosecu- 
tions were in many instances hegmi against parties who 
had been in tlie federal armies for alleged offences during 
the war, and numerous private suits were brought for in- 
juries to persons and property. Some of these found their 
way to the Supreme Court, where decisions were rendered 
extending protection to the oflicers and soldiers of the 
army against prosecution in the tribimals of the enemy's 
country for otfences or injuries committed there by them 
during the war. 

The first of these cases was that of Coleinan from Ten- 
nessee, which was before the court at the October term of 
1878. Coleman was indicted in October, 1874, in one of 
the district courts of Tennessee for the murder of a young 
woman in March, 1865. To the indietnient he pknided 
not guilty, and a foi-mer conviction for the same offence 
by a general court-martial roguhirly convened for his trial 
at Knoxville, Tennessee, on the 27th of March, 1865, the 
United States at that time, and when the oftence w^as com- 
mitted, occupying with their armies East Tennessee as a 
military district, and the defendant being a regular soldier 
in their military service, subject to the articles of w^ar, 
mihtary orders, and such military laws as were there in 
force by their authority, alleging that he was arraigned 
by that tribunal up(m a charge of murder, in having killed 
the same person mentioned in the indictment, and was 
afterwards, on the 9th of May, 1865, tried and convicted 
of the offence and sentenced to death by hanging, and 
that said sentence was still standing as the judgment of 
the court-martial, approved as required by law in such 
cases, without any other or further action thereon. He, 
therefore, prayed that the indictment might be quashed. 

The local court held this plea bad on the ground, among 
others, that the defendant's conviction of the ofience 
charged by a court-martial, under the laws of the United 
States, on the 9th of May, 1865, was not a bar to the in- 
dictment for the same offence; because by the murder 



107 

alle2:ed he was also guilty of an oflencc against the laws 
of Tennessee, Tie was thereupon put upon his trial in 
that court, convicted of murder, and sentenced to death. 
On ai)peal to the Supreme Court of the State the judgment 
was aHirnicd, and the case was taken to the Supreme 
i\)\wt ()!' the Tnited States. It was there argued as though 
its determination (lei)ended upon the construction given 
to the oOth section of the act of Congress of Nhirch od 
18<!;-3,to enroll and call out the national forces, the defend- 
ant's counsel contending that the section vested in general 
courts-martial ami military commissions the right to pun- 
ish for the oftences designated therein, when comvjiitted 
in time of war, by persons in the military service of the 
United States and subject to the articles of war, to the 
exclusion of jurisdiction over them hy the state courts. 
That section enacted: "That in time of war, insurrection, 
or rel)ellion, murder, assault and battery with an intent to 
kill, manslaughter, mayhem, wounding by shooting or 
stabbing with an intent to commit murder, robbery, arson, 
burglary, rape, assault and battery with an intent to com- 
mit rape, and larceny, shall be punishable by the sentence 
of a general court-martial or military commission, when 
committed by persons who are in the military service of 
the United States, and subject to the articles of war; and 
the punishment for such offences shall never be less than 
those inflicted by the law\s of the State, territory, or district 
in which they may have been committed."* But in de- 
livering the opinion of the court, Judge Field replied as 
follows : 

" The section is part of au act containing numerous provisions for the 
enrollment of the national forces, designating who shall constitute such 
forces ; who shall be exempt from military service ; when they shall he 
drafted for service ; when substitutes may be allowed ; how deserters and 
spies and persons resisting the draft shall be punished ; and many other 
particulars, having for their object to secure a large force to carry on the 
then existing war, and to give efficiency to it when called into service. 
It was enacted not merely to insure order and discipline among the men 

* 12 U. S. Stats., p. 736: 



108 

composing those forces, but to protect citizens not in the military service 
from the violence of sokliei-s. It is a matter well known that the march 
even of an army not hostile is often accompanied with acts of violence and 
pillage by straggling parties of soldiers, wliich the most rigid discipline 
is hardly able to prevent. The offences mentioned are those of most 
common occurrence, and the swift and summary justice of a military 
court was deemed necessary to restrain their commission. 

"£ut the section does not make the jurisdiction of the military tribu- 
nals exclusive of that of the state courts. It does not declare that soldiers 
committing the oifences named shall not be amenable to punishment by 
the state courts. It simply declares that the offences shall be ' punishable,' 
not that they shall be punished by the military courts ; and this is merely 
saying that they may be thus punished. 

" Previous to its enactment the offences designated were punishable 
by the state courts, and persons in the military service who committed 
them Avere delivered over to those courts for trial ; and it contains no 
words indicating an intention on the part of Congress to take from them 
the jurisdiction in this respect which they had always exercised. With 
the known hostility of the American people to any interference by the 
military with the regular administration of justice in the civil courts, no 
such intention should be ascribed to Congress in the absence of clear and 
direct language to that effect. 

" We do not mean to intimate that it was not within the competency 
of Congress to confer exclusive jurisdiction upon military courts over 
offences committed by persons in the military service of the United 
States. As Congress is expressly authorized by the Constitution ' to raise 
and support armies,' and ' to make rules for the government and regu- 
lation of the land and naval forces,' its control over the whole subject of 
the formation, organization, and government of the national armies, in- 
cluding therein the punishment of offences committed by persons in the 
military service, would seem to be plenary. All we now afhrm is that 
by the law to which we are referred, the 30th section of the enrollment 
act, no such exclusive juri.sdiction is vested in the military tribunals 
mentioned. No public policy would have been subserved by investing 
them with such jurisdiction, and many reasons may be suggested against 
it. Persons in the military service could not have been taken from the 
army by process of the state courts without the consent of the military 
authorities; and, therefore, no impairment of its efficiency could arise 
from the retention of jurisdiction by the state courts to try the offences. 
The answer of the military authorities to any such process would have 
been : ' We are empowered to try and punish the persons who have com- 
mitted the offences alleged, and we will see that justice is done in the 
premises.' Interference with the army would thus have been impossible; 
and offences committed by soldiers, discovered after the army had marched 
to a distance, when the production of evidence before a court-martial 
would have been difficult, if not impossible, or discovered after the war 



100 

■was over and the army disliaiided, would iiol <;o uniuiiiislicd. Surely 
Cono-resfs eould not liavr intended that in sueli casrs the jiuilly should 
go free. 

" In denyinjito the military tribunals exclnsive jniisdietiDn, undtr tin- 
section in ([nestion, over the offences mentioned, when committed by per- 
sons in the military service of the United States and suhjcet to the ar- 
ticles of war, we have reference to them when they were held in States oe- 
cnpying, as members of the Union, their normal and constitvitional rela- 
tions to the federal government, in which the supremacy of that govern- 
ment was recognized and the civil courts wei-e open and in the undis- 
turbed exercise of their j urisdiction. When the armies of the United States 
were in the territory of the insurgent States, banded together in hostility 
to the national government and making war against it ; in other words, 
when the armies of the United States were in the enemy's country the 
military tribunals mentioned had, under the laws of war, and the author- 
ity conferred by the section named, exclusive jurisdiction to try and pun- 
ish offences of every grade committed by persons in the military service. 
Officers and soldiers of the armies of the Union were not subject during 
the war to the laws of the enemy or amenable to his tribunals for offences 
committed by them. They were answerable only to their own gov- 
ernment, and only l>y its laws, as enforced by its armies, could they be 
punished. 

" It is well settled that a foreign army i)ermitted to march through a 
friendly country, or to be stationed in it, by authority of its government 
or sovereign, is exempt from the civil and criminal jurisdiction of the place. 
The sovereign is understood, said this court in the celebi-ated case of The 
Exchange, to cede a portion of his territorial jurisdiction when he allows 
the troops of a foreign prince to pass through his dominions : — ' In such 
case, without any express declaration waiving jurisdiction over the army 
to which this right of passage has been granted, the sovereign who should 
attempt to exercise it would certainly be considered as violating his faith. 
By exercising it, the purpose for which the free passage was granted 
would be defeated, and a portion of the military force of a foreign inde- 
pendent nation would be diverted from those national objects and duties 
to which it was applicable, and would be withdrawn Irom the control of 
the sovereign whose power and whose safety might greatly depend on re- 
taining the exclusive command and disposition of this force. The grant 
of a free passage, therefore, implies a waiver of all jurisdiction over the 
troops during their passage, and permits the foreign general to use that 
discipline and to inflict those punishments which the government of his 
army may require.' 

"If an army marching through a friendly country would thus be 
exempt from its civil and criminal jurisdiction, a fortiori \\ould an army 
invading an enemy's country be exempt. The fact that war is waged be- 
tween two countries negatives the possibility of jurisdiction being exer- 
cised by the tribunals of the one country over persons engaged in the 



110 

military service of the other for offences committed while in such ser- 
vice. Aside from this want of jurisdiction there would be something in- 
congruous and absurd in permitting an oiiicer or soldier of an invading 
army to be tried by his enemy, whose country he had invaded. 

" The tact that when the offence was committed, for which the defend- 
ant wa.s indicted, the State of Tennessee was in. the military occupation 
of the United States, with a military governor at its head, appointed by 
the President, cannot alter this conclusion. Tennessee was one of the in- 
surgent States forming the organization known as the Confederate States, 
against which the war was waged. Her territory was enemy's country, 
and its character in this respect was not changed until long afterwards. 

" The doctrine of international law on the effect of military occupa- 
tion of enemy's territory upon its former laws is well established. 
Though the late war was not between independent nations, but between 
different portions of the same nation, yet having taken the proportions 
of a territorial war, the insurgents having become formidable enough to 
be recognized as belligerents, the same doctrine must be held to apply. 
The right to govern the territory of the enemy during its military occu- 
pation is one of the incidents of war, being a consequence of its acquisi- 
tion ; and the character and form of the government to be established de- 
pend entirely upon the laws of the conquering State or the order of its 
military commander. By such occupation the political relations between 
the people of the hostile country and their former government or sover- 
eign are for the time severed ; but the municipal laws, that is, the laws 
which 'regulate private rights, enforce contracts, punish crime, and regu- 
late the transfer of property, remain in full force, so far as they affect 
the inhabitants of the country among themselves, unless suspended or 
superseded by the conqueror. And the tribunals by which the laws are 
enforced continue as before unless thus changed. In other words, the 
municipal laws of the State and their administration remain in full force 
so far as the inhabitants of the country are concerned unless changed by 
the occupying belligerent. * 

" This doctrine does not affect in any respect the exclusive character of 
the jurisdiction of the military tribunals over the officers and soldiers of 
the army of the United States in Tennessee during the war; for, as al- 
ready said, they were not subject to the laws, nor amenable to the tribu- 
nals of the hostile country. The laws of the State for the punishment 
of crime were continued in force only for the protection and benefit of 
its own people. As respects them, the same acts which constituted 
offences before the military occupation constituted offences afterwards; 
and the same tribunals, unless superseded by order of the military com- 
manders, continued to exercise their ordinary jurisdiction. 

" If these views be correct, the plea of the defendant of a former con- 
viction for the same offence by a court-martial under the laws of the 
United States was not a proper plea in the case. Such a plea admits the 

* Halleck's Int. Law, chap, xxxiii. 



Ill 

jurisdiction of the criininal court to try tlu' oll'cncc if it wore not for the 
former conviction. Its inapplicability, however, will not prevent our 
,uivin<i- effect to the ohjection which the ilefendant in tliis irregular way 
attempted to raise, that the state court had uo Jurisdiel iou to try au.l pun- 
ish liini for tlu- oirnue allejied. The judgment aud couviclion in Die 
criminal court should have been set aside and the indictment ([uashed 
for waut of jurisdiction. Their effect was to defeat an act doiu' under tlie 
authority of the United States hy a tribunal of officers ai>i)ointed under 
the law enacted for the government and rcfiulation of the army in time 
of war, and whilst that army was in a hostile and conquered State. The 
judgment of that tribunal at the time it was rendered, as well as the per- 
son of the defendant, were beyond the control of the State of Tennessee. 
The authority of the United States was then sovereign and their juris- 
diction exclusive. Nothing Avhich has since occurred has diminished that 
authority or impaired the efficacy of that judgment. 

" In thus holding, we do not call in question the correctness of the 
general doctrine asserted by the Supreme Court of Tennessee, that the 
same act may, in some instances, be an offence against two governments, 
and that the transgressor may be held liable to punishment by both when 
the punishment is of such a character that it can be twice inflicted, or by 
either of the two governments if the punishment, from its nature, can 
be only once suft'ered. It may well be that the satisfaction which the 
transgressor makes for the violated law of the United State-s is no atone- 
ment for the violated law of Tennessee. But here there is no case pre- 
sented for the application of the doctrine. The laws of Tennessee with 
regard to offences and their punishment, which were allowed to remain 
in force during its military occupation, did not apply to the defendant, 
as he was at the time a soldier in the army of the United States and sub- 
ject to the articles of war. He was responsible for his conduct to the 
laws of his own government only as enforced hy the commander of its 
army in that State, without whose consent he could not even go beyond 
its lines. Had lie been caught by the forces of the enemy, after com- 
mitting the offence, he might have been subjected to a summary trial and 
l)unishment by order of their commander, and there would have been no 
just ground of complaint, for the marauder and assassin are not protected 
by any usages of civilized wartare. But the courts of the State, whose 
regular government was superseded, and whose laws were tolei-ated from 
motives of convenience, were without jurisdiction to deal with him." 

The Supreme Cotirt of the United States accordingly 
reversed the judgment of the Supreme Court of Tennes- 
see; hut it did not allow the criminal to escape. It added 
to its reversal the following direction : 

" But as the defendant was guilty of murder, as clearly appears not 
only by the evidence in the record in this case, but in the record of the 
proceedings of the court-martial, a murder committed, too, under circum- 



112 

stances of great atrocity, and as he was convicted of the crime by that 
court and sentenced to death, and it appears by his plea that said judg- 
ment was duly approved and still remains without any action having 
been taken upon it, he may be delivered up to the military authorities 
of the United States, to be dealt with as required by law." 

The prisoner was soon afterwards turned over to tlie 
military authorities of the United States, when his punish- 
ment was commuted to imprisonment for Rfe at hard kibor, 
and he is now tlius imprisoned. 



In the ease of Dow vs. Johnson, at the October term (^f 
1879, the question came before the court whether an oihcer 
of the army of the United States, whilst in service during 
the late war in the enemy's country, was lial)le to a civil 
action in the courts of that country for injuries resulting 
from acts of war ordered by him in his military character; 
and it was held that he was not thus liable, and that he 
could not be called upon to justify or explain his military 
conduct in a civil tribunal upon any allegation of the in- 
jured party that the acts complained of were not justified 
by the necessities of war. He was responsible only to his 
own government, and only by its laws, administered by its 
authority, could he be called to account. 

The case was one which excited a good deal of interest, 
and the question presented was elaborately discussed. The 
defendant, Neal Dow, was a brigadier-general in the army 
of the United States, and in 1862 and 1863 was stationed 
in Louisiana in command of Forts Jackson and St. Philip, 
on the Mississippi River, below N"ew Orleans. These 
forts surrendered to the forces' of the United States in 
April, 1 862. The fleet under Admiral Farragut had passed 
them and reached ^ew Orleans on the 25th of the month, 
and soon afterwards the city was occupied by the forces of 
the United States under General Butler. On taking p(.>s- 
session of the city, the General issued a proclamation, 
bearing date on the 1st of May, 1862, in wdiich, among 
other thinics, he declared that until the restoration of the 



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authority of the I'liitetl r<tate.s the 
by inai-tial hiw; that all disorders, di 
and erinies of an aLi'u'ra\ated natii 
forces or laws of the United States 
a luihtary court lor trial and jtuni 
misdemeanors would l)e subjei't to tl 
if it desired to act ; and that civil * 
would •• l)e referred to the ordinai_ 
this prockniatiou, the Sixth District Court of the City and 
Parish of Xew Orleans was aUowed to continue in exist- 
ence, the judge haA'ing taken the oath of allegiance to the 
United States. 

In January, IHtJo, General Dow was sued in that court 
by one Johnson, who set forth in his petition that he was 
a citizen of Xew York, and for several years had been the 
owner of a plantation and slaves in Louisiana, on the Mis- 
sissippi Ei^'er, about forty-three miles from Xew Orleans; 
that on the sixth of September, 1862, during liis tempo- 
rary absence, the steamer Aver}-, in charge of Captain 
Snell, of Company B, of the Thirteenth ^hline Regiment, 
wuth a force under his command, had stopped at the plan- 
tation, and taken from it twenty-five hogsheads of sugar; 
and that said force had plundered the dwelling-liouse of 
the plantation and carried off a silver pitcher, half a dozen 
silver knives, and other table ware, the private property 
of the phuntiif, the whole property taken amounting in 
value to |1,G11.29; that these acts of Captain Snell and 
of the officers and soldiers under his command, which the 
petition characterized as "illegal, w^anton, oppressive, and 
unjustifiable/' were perpetrated under a verbal and secret 
order of Brigadier-Greneral Xeal Dow, then in the service 
of the United States, and in command of Forts Jackson 
and St. f'hilip, who, l)y his secret orders, which tlie peti- 
tion declared were " unauthorized by liis stiperiors, or by 
any provision of martial law, or l)y any requirements of 
necessity growing out of a state of war," wantonly abused 
his powder and inflicted upon the plaintiff the wrongs of 
8 



114 

which ho complahicd; and, therot'ore, he pvajed judgment 
against the General for tlie vahie of the property. 

To this suit General Dow, though personally served 
with citation, made no appearance. He may have thought, 
as the Supreme Court in its opinion suggests, that during 
the existence of the war, in a district where insurrection 
had recently heen suppressed, and was only kept from 
breaking out again by the presence of the armed forces 
of the United States, he was not called upon by any rule of 
law to answer to a civil tribunal for his military orders, 
and satisfy it that they were authorized by his superiors, 
or by the necessities growing out of a state of war. He 
may have supposed that for his military conduct he was 
responsible only to his military superiors and the govern- 
ment whose othcer he was. 

Be that as it may, or what ever other reason he may 
have had, he made no response to the petition ; he was 
therefore defaulted. The Sixth District Court af the Par- 
ish of New Orleans did not seem, as the Supreme Court 
observes, to consider that it was at all inconsistent with his 
duty, as an otticer in the army of the United States, to leave 
his post at the forts, which guarded the passage of the 
Mississippi, nearly a hundred miles distant, and attend upon 
its summons to justify his military orders, or seek coun- 
sel and procure evidence for his defence. ISTor did it ap- 
pear to have occurred to the court that if jurisdiction over 
him was recognized there might spring up such a multi- 
tude of suits as to keep the othcers of the army stationed 
in its district so busy that they would have little time to 
look after the enemy and guard against his attacks. The de- 
fault of the General being entered, testim.ony was received 
showing that the articles mentioned were seized by a mili- 
tary detachment sent by him and removed from the plan- 
tation, and that their value amounted to $1,454.81. Judg- 
ment was thereupon entered in favor of the plaintiti" for 
that sum with interest and costs. It bore date April 9th, 
1863. 



115 

Updii tliis jiidii'iiuMit ;iii iu'tion wa- lnMn<j,hl in the ( 'ircuit 
Court of the rniti'd States for tlu' District of Maine. Tlie 
deelaratioii stated llie reeoverv ol' the Judi;-iiieiil ineidioiied 
and made [»rofei't ot" an authentieate(l i';>j)y. To it the de- 
fendant |dea(U_'d tlie i^'eneral issue, mil fir/ rei-ord, and eer- 
taiu spi'eial plea-, theol/jeet of whieh was to show that the 
(hsti'ict eoui't Liad no jurisdietion to i'en(h'i' the judu'- 
)nent in (pii-stion, for the rt'ason that at the time its district 
was a part of tlie country in insurrection auainst the gov- 
ernment of the ITnitod States, and making war against it, 
and was held in suhjeetion l)y its armed f >rces ; that the 
defendant was then a hrigadier-general in the military ser- 
vice of the Ignited States, coniuiissioned l)y the I'resident, 
and acting in that State under his orders and the ai'ticles of 
war; and was authorized 1)\' the general order of the Presi- 
dent of July 22d, 1862, to seize and use any [)roperty, real 
or personal, which might be necessary or eonv^enient for 
his command as supplies, or for other military purposes; 
that by his order the troops under his command seized 
from the plaintili" then a citizen of that State, certain chat- 
tels necessaiy and convenient for su[iplies for the army 
of the United States, and other military purposes ; and 
that for that seizure the action was brought in the Sixth 
District Court of New (Orleans against him, in which the 
judgment in question was rendered ; that the general 
government had deprived that court of all jurisdiction, 
except such as was conferred by the commanding general, 
and that no jurisdiction over persons in the military ser- 
vice of the United States for acts performed in the line 
of their duty was ever thus conferred upon it. 

Upon these pleas the main question stated above was 
discussed. In deciding it, Judge Field, who gave tlie 
opinion of the court, after dis[K)sing of a prelinunary ob- 
jection, said as follows : 

" This brings us to the consideratiou of the main question involved, which 
we do not regard as at all difficult of solution, when reference is had to the 
character of the late war. The war, though not between independent 
nations, but between different portions of the same nation, was acoompa- 



116 

iiied by the geueral incidents of an international war. It was waged be- 
tween people occupying different territories, separated from each other by 
well-defined lines. It attained proportions seldom reached in the wars of 
modern nations. Armies of greater magnitude and more formidable in 
their equipments than any known in the present century were put into 
the field by the contending parties. The insurgent States united in an or- 
ganization known as the Confederate States, by which they acted through 
a central authority guiding their military movements ; and to them bel- 
ligerent rights were accorded by the federal government. This was 
shown in the treatment of captives as prisoners of war, the exchange of 
prisoners, the release of officers on parole, and in numerous arrangements 
to mitigate as far as possible the inevitable suft'erings and miseries attend- 
ing the conflict. The people of the loyal States on the one hand, and the 
people of the Confederate States on the other, thus became enemies to 
each other, and were liable to be dealt with as such without reference to 
their individual opinions and dispositions. Commercial intercourse and 
correspondence between them were prohibited, as well by express enact- 
ments of Congress as by the accepted doctrines of public law. The enforce- 
ment of contracts previously made between them was suspended, part- 
nerships were dissolved, and the courts of each belligerent were closed to 
the citizens of the other, and its territory was to the other enemies' coun- 
try. When, therefore, our armies marched into the country which ac- 
knowledged the authority of the Confederate government, that is, into the 
enemy's country, their officers and soldiers were not subject to its laws, 
nor amenable to its tribunals for their acts. They were subject only to 
their own government, and only by its laws, administered by its author- 
ity, could they be called to account. As was observed in the recent case 
of Coleman vs. Tennessee, it is well settled that a foreign army, permitted 
to march through a friendly country, or to be stationed in it by authority 
of its sovereign or government, is exempt from its civil and criminal 
jurisdiction. The law was so stated in the celebrated case of The Ex- 
change, reported in the seventh of Cranch. Much more must this exemp- 
tion prevail where a hostile army invades an enemy's country. There 
would be something singularly absurd in permitting an officer or soldier 
of an invading army to be tried by his enemy, whose country it had in- 
vaded. The same reasons for his exemption from criminal prosecution 
apply to civil proceedings. There would be as much incongruity, and as 
little likelihood of freedom from the irritations of the war, in civil as in 
criminal proceedings prosecuted during its continuance. In both in- 
stances, from the very nature of war, the tribunals of the enemy must be 
without jurisdiction to sit in judgment upon the military conduct of the 
officers and soldiers of the invading army. It is difficult to reason upon 
a proposition so manifest ; its correctness is evident upon its bare an- 
nouncement, and no additional force can be given to it by any amount of 
statement as to the proper conduct of war. It is manifest that if officers 
or soldiers of the army could be required to leave their ;posts and troops. 



117 

upon the snmiuons oi' cvory local tribunal, on pain of a.jndgment by tic- 
fault against llicni. which at the termination of hostilities could be en- 
forced hy suit in tlicir own States, the elliciency of the army as a hostile 
force would be utterly destroyed. Nor can it make any ditiference with 
what denunciatory epithets the comphiininji Jtarty may characterize their 
conduct. If su6'h epithets could confer jurisdiction they would always 
be su])plied in every variety of form. An iniiabitant of a boraVjarded 
city would have little licsitation in declaring the bombardment unneces- 
sary and cruel. Wouhl it be pretended that he could call the command- 
ing general, who ordered it, before a local tribunal to show its necessity 
or be mulcted in damages? The owner of supplies seized, or property 
destroyed, wonld have no difficulty, as human nature is constituted, in 
believing and affirming that the seizure and destruction were wanton and 
needless. All this is too plain for discussion and will be readily admitted. 

"Nor is the po.sition of the invading belligerent affected, or his relation 
to the local tribunals changed, by his temporary occupation and domina- 
tion of any portion of tlie enemy's country. As a necessary consequence 
of such occupation and domination, the political relations of its people to 
their former government are, for the time, severed. But tor their pro- 
tection and benefit, and the protection and benefit of others not in the 
military service ; or, in other word.s, in order that the ordinary pursuits 
and liusiness of society may not be unnecessarily deranged, the munici- 
pal laws, that is, such as affect ]3rivate rights of persons and property, 
and provide for the punishment of crime, are generally allowed to con- 
tinue in force, and to be jidministered b}^ the ordinary tribunals as they 
were administered before the occupation. Tliey are considered as con- 
tinuing unless suspended or superseded by the occupying belligerent. 
But their continued enforcement is not for the protection or control of 
the army or its officers or soldiers. Tliese remain subject to the law's of 
war, and are responsible for their conduct only to their own government, 
and the tribunals by which those laws are administered. If guilty of 
Avanton crueltj' to persons, or of unnecessary spoliation of propert.y, or of 
other acts not authorized bj- the laws of war, the}' ma}' be tried and pun- 
ished by the military tribunals. They are amenable to no other tribunal, 
except that of public opinion, which, it is to be hoped, will always brand 
with infamy all who authorize or sanction acts of cruelty and oppression. 

" If, now, we apply the views thus expressed to the case at bar, there 
will be no difficult}- in disposing of it. The condition of New Orleans 
and of the district connected with it, at the time of the seizui-e of the 
property of the plaintiff and the entry of the judgment against Dow, was 
not that of a country restored to its normal relations to the Union, by 
the fact that they had been captured by our forces, and w^ere held in 
subjection. A feeling of intense hostility against the government of the 
Union prevailed as before with the people, which was ready to break out 
into insurrection upon the appearance of the enemy in force, or upon the 
withdrawal of our troops. The country was under martial hnv; and its 



118 

armed occupation gave no jurisdiction to the civil tribunals over the offi- 
cers and soldiers of the occupying army. They "were not to be harassed 
and mulcted at the complaint of any person aggrieved by their action. 
The jurisdiction which the district court was authorized to exercise over 
civil cases between parties, by the proclamation of General Butler, did 
not extend to cases against them. The third special plea alleges that the 
court was deprived by the general government of all jurisdiction except 
such as wa.s conferred by the commanding general, and that no jurisdic- 
tion over persons in the militarj^ service for acts performed in the line of 
their duty was ever thus conferred upon it. It was not for their control 
in any way, or tiie settlement of complaints against them, that the court 
was allowed to continue in existence. It was, as already stated, for the 
jjrotection and benefit of the inhabitants of tlie conquered country and 
otliers there not engaged in the military service. 

" If private property there was taken by an officer or a soldier (jf the 
occupying army, acting in his military character, when, by the laws of 
war, or tlie proclamation of the commanding general, it should have been 
exempt from seizure, the owner could have complained to that com- 
mander, who might have ordered restitution, or sent the otfending party 
before a military triljunal, as circumstances might have required, or he 
(•;)uld li:i\(' luad recourse to the government for redress. But there could 
be no doubt of the right of the army to appropriate any property there, 
although belonging to i^rivate individuals, which was necessary for its 
support or convenient for its use. This was a belligerent right, which 
was not extinguished by the occupation of the country, although the 
necessity for its exercise was thereby lessened. However exempt from 
seizure on other grounds private property there may have been, it was 
always subject to l)e appropriated wlien re(|uired ))y the necessities or 
convenience of the army, thougli the owner of property fallen in such case 
may have had a just cl dm against th*» government for indemnity. 

"This doctrine of non-liability to the tribunals of the invaded country 
for acts of warfare is as applicable to members of the Confederate army 
when in Pennsylvania, as to members of the National army when in the 
insurgent States. The officers or soldiers of neither army could be 
called to account civilly or criminally in those tribunals for such acts, 
whether those acts resulted in the destruction of property or the destruc- 
tion of life; nor could they be required by those tribunals to explain or 
justify their conduct upon any averment of the injured party that the 
acts complained of were unauthorized by the necessities of war. It fol- 
lows that, in our judgment, the District Court of New Orleans was with- 
out jurisdiction to render the judgment in question, and the special pleas 
in this case constituted a perfect answer to the declaration. — (See People 
vs. Coleman, 97 U. S., 509; Ford vs. Surget, Id., C05 ; also LeCaux vs. Eden, 
2 Doug., 594 ; Lamar vs. Browne, 92 U. S., 197, and Coolidge vs. Guthrie, 
2 Amcr. Law. Reg., N. S., 22.) 

"We fully agree with the presiding justice of the circuit court in the 
doctrine that the military should always be kept in subjection to the 



119 

laws of the country to \vhicli it l>clon.tis. and tliat he is no friend to the 
liepnblic who advocates tiic contrary. The cstalilisli.d ])rinciple of every 
free people is, that the law shall alone govern; and to it the military 
must always yield. "We do not coutrovert tlie doctrine of Mitchell vs. Har- 
mony ; on the contrary, we approve it. But it has uo application to the 
case at l)ar. The trading for which the seizure was there made had been 
permitted by the Executive Department of our government. The ques- 
tion here is. what is the law which governs an army invading an enemy's 
country? It is not the civil law of tlie invaded country; it is not the 
civil law of the conquering country; it is military hiw — the law of war — 
and its supremacy for the protection of the oflicers and soldiers of the 
army, when in service in the tield in the enemy's country, is Jis essential 
to the efficiency of the army as the supremacy of the civil law at home, 
and in. time of peace, is essential to the preservation of liberty." 



Protection of Sealed Matter in the Mail from In- 
spection BY Officials of the Post-Office. 

How far inatttM' in the mail can bo protected iVoin in- 
spection by officials of the post-office, and at the same 
time the mail prevented from being the vehicle of circu- 
lating publications having a tendency to corrupt the pub- 
lic morals, has been for many years the subject of frequent 
discussion and of much conflict of opinion. It was the 
occasion of an earnest debate in the Senate of tbe United 
States in 1886. President Jackson, in his annual message 
of the previous year, had referred to the attempted circu- 
lation through the mail i^f inflammatory appeals, addressed 
to the passions of the slaves, in prints, and in various pub- 
lications, tending to stimulate them to insurrection, and 
suggested to Congress the propriety of passing a law pro- 
hibiting, under severe penalties, such circulation of •' in- 
cendiary pubhcations" in the Southern States. In the 
Senate, that portion of the message was referred to a select 
committee, of which Mr. Calhoun was chairman ; and he 
made an elaborate report on the subject, in which he con- 
tended that it belonged to the States, and not to Congress, 
to determine what is and what is not calculated to disturb 



120 

their security, and tliat to hold otherwise would-be fatal to 
the States; for if Congress might determine what papers 
were incendiary, and as such pr()liil)it their circulation 
through the mail, it might also determine what were not 
incendiary and enforce their circulation. Whilst, there- 
fore, condemning in the strongest terms the circulation of 
the publications, he insisted that Congress had not the 
power to pass a law prohibiting their transmission through 
the mail, on the ground that it would abridge the liberty 
of the press. " To umkrstand," he said, " more fully the 
extent of the control which the right of prohibiting circula- 
tion through the mail would give to the government over 
the press, it must be borne in mind that the power of Con- 
gress over the post-office and the mail is an exclusive 
power. It must also be remembered that Congress, in the 
exercise of this power, may declare any road or navigable 
winter to be a post-road; and that, by the act of 1825, it is 
provided ' that no stage, or other vehicle which reguharly 
performs trips on a post-road, oi- on a road parallel to it, 
shall carry letters.' The same provision extends to pack- 
ets, l)oats, ov other vessels on navigable waters. Like pro- 
vision may l)e extended to newspapers and pamphlets, 
which, if it be admitted that Congress has the right to dis- 
criminate in reference to their character, what paper shall 
or what shall not be transmitted by the mail, would subject 
the freedom of the press, on all subjects, political, moral, and 
rehgious, completely to its will and pleasure. It would, in 
fact, in some respects, more effectually control the freedom 
of the press than any sedition law, however severe its pen- 
alties." Mr. Calhoun, at the same time, contended that 
when a State had pronounced certain publications to be 
dangerous to its peace and prohibited their circulation, it 
was the duty of Congress to respect its laws and co-oper- 
ate in their enforcement; and whilst, therefore, Congress 
could not prohibit the transmission of the incendiary doc- 
nments through the mails, it could prevent their dehvery 
by the postmasters in the States where their circulation was 



121 

forhiddcii. Tn the discussion upon the bill reported by 
liini, similar views against the power of Congress were ex- 
pressed by other Senators, who did not concur in the opin- 
i,)n that the delivery of pa[)ci-s could he pi'cvcnted when 
their transmission was permitted. 

The ([Ucstion tlius i)rcscnted came ])efore the Suj)i'eme 
Court of the TTnited States at the October tei-m of 1877, 
in Ex-parte Jackson. A section of the Revised Statutes 
provided that " no letter or circuhir concerning lotteries, 
so-called gift concerts, or other simi hu- enterprises oHering 
prizes," should be carried in tlie mail, and declared that 
any person knowingly depositing any tiling in the mail to 
be conveyed in violation of this section should be pun- 
ished by a fine of from one to five hundred dollars, with 
costs of prosecution. Under this section one Jackson was 
indicted in the Circuit Court of tlie United States for 
the Southern District of Xew' Yoi-k, for depositing in the 
mail at ]*s'ew York, to lie conveyed to another person, a 
circular concerning a lottery ottering prizes. Upon being 
arraigned he stood mute, refusing to plead, and thereupon 
a plea of not guilty was entered in his behalf .by order of 
the court. He w^as subsequently tried, convicted, and sen- 
tenced to pay a fine of one hundred dollars, witli the costs 
of the prosecution, and to be committed to the county jail 
until tlie fine and costs were paid. Upon his commitment 
he presented to the Supreme Court a petition, alleging, 
among other things, that he was illegally restrained of his 
liberty, as the court had no jurisdiction to punish for the 
matters charged, because the act of Congress was uncon- 
stitutional and void. He therefore prayed for a Avrit of 
habeas corpus to be directed to the marshal to liring him 
before the court, and a writ of certiorari to lie directed to 
the clerk of the circuit court to send up the record of his 
conviction, that the court might inquire into the cause and 
legality of his imprisonment. Accompanying the petition, 
as exhibits, w-ere copies of the indictment and of the rec- 
ord of conviction. The court, instead of ordering that the 



122 

writs issue at once, entered a rule, the counsel of the peti- 
tioner consentino- thereto, that cause be shown, on a day 
designated, why the writs should not issue as prayed, and 
that a co[)y of tlie rule l)e served on the Attorney-General 
of the United States, the marshal of the Southern District 
of Xew York, and the clerk of the Circuit ('ourt. On the 
return (hiy the validity of the act was argued. The court 
decided the act to be valid and refused the writs, drawing 
a distinction, in the right of inspection by officials of the 
post-office, between sealed matter and unsealed matter, 
and holding that sealed matter in the mail is equally 
protected from unreasonable search as papers in one's 
household. In giving the opinion of the court. Judge 
Field said as follows : 

" The power vested in Congress 'to establish post-roads and post-offices ' 
has been practically construed, since the foundation of the government, 
to authorize not merely the designation of the routes over which the mail 
shall be carried, and the offices where letters and other documents shall 
be received to be distributed or forwarded, but the carriage of the mail, 
and all measures necessary to secure its safe and speedy transit, and the 
prompt delivery of its contents. The validity of legislation prescribing 
what should be carried, and its weight and form, and the charges to which 
it should be subjected, has never been questioned. AVhat should be mail- 
able has varied at different times, changing with the facility of trans- 
portation over the post-roads. At one time only letters, newspapers, 
magazines, pamphlets, and other printed matter, not exceeding eight 
ounces in weight, were carried ; afterwards books were added to the list ; 
and now small packages of merchandise, not exceeding a prescribed 
weight, as well as books and printed matter of all kinds, are transported 
in the mail. The power possessed by Congress embraces the regulation 
of the entire postal system of the country. The right to designate what 
shall be carried necessarily involves the right to determine what shall be 
excluded. The difficulty attending the subject arises, not from the want 
of power in Congress to prescribe regulations as to what shall constitute 
mail matter, but from the necessity of enforcing them consistently with 
rights reserved to the people, of far greater importance than the trans- 
portation of the mail. In their enforcement a distinction is to be made 
between different kinds of mail matter ; between what is intended to be 
kept free from inspection, such as letters and sealed packages subject to 
letter postage ; and what is open to inspection, such as newspapers, maga- 
zines, pamphlets, and other printed matter, purposely left in a condition 
to be examined. Letters and sealed packages of this kind in the mail 



123 

are as fully jjuurded from examination and inspection, except as to thetr 
outward form and weijiht, as if they were retained by the parties for- 
wardinji tliem in their own domiciles. The constitutional guaranty of the 
risrht of tlie people to be secure in their papers against unreasonable 
searches and seizures extends to their papers, thus closed against inspec- 
tion. wliere\(T (hey may be. Whilst in the mail they can only lie opened 
and examined under like warrant, issued ujion similar oath or atlirma- 
tion, particularly describing the thing to l)c seizeil, as is re(|uire(l when 
papers are subjected to search in one"s own household. No law of Con- 
gress can i)lace in the hands of otiicials connected with the jiostal service 
any autlu)rity to invade the secrecy of letters and such sealed packages 
in the mail; and all regulations adopted as to mail matter of this kind 
must be in subordination to th(> great principle embodied in the fourth 
amendment of the Con.stitution. 

"Nor can any regulation l)e enforced against the transportation of 
printed matter in the mail, which is open to examination, so as to inter- 
fere in any manner with the freedom of the press. Liberty ol' circulating 
is as essential to that freedom as liberty of ])ublishing; indeed, without 
the circulation the publication would be of little \alue. If, therefore, 
printed matter be excluded from the nuiils, its transportation in any other 
way cannot be forbidden by Congress.'' 

ReiVi'1-iiiu' to the views expressed l\y Mr. Callioun and 
other Senators in the Senate in 18o(), stated ahove, the 
Judge said as follows : 

" It is evident that they were founded upon the assumption that it was 
comi)etent for Congi'ess to prohibit the transportation of iiew.spapers and 
pamphlets over postal routes in any other way than by mail ; and of course 
it would follow that if, with sirch a prohibition, the transportation in the 
nuiil could also be forbidden, the circulation of the documents would be 
destroyed and a fatal blow given to the freedom of the press. But we do 
not think that Congress possesses the power to prevent the transportation 
in other ways, as merchandi.se, of matter which it excludes from the 
mails. To give etficiency to its regulaticms and prevent rival po.stal sj's- 
tems, it may perhaps prohibit the carriage by others for hire over postal 
routes of articles which legitimately constitute mail matter, in the sense 
in which those terms were used when the Constitution was adopted — con- 
sisting of letters, and of newspapers and pamphlets when not sent as mer- 
chandise — but further than this its power of prohibition cannot extend. 

" Whilst regulations excluding matter from the mail cannot be enforced 
in a way which would require or permit an examination into letters or 
sealed packages .subject to letter postage, without warrant issued- ui^on 
oath or affirmation, in the search for prohibited matter, they may be en- 
forced irpon competent evidence of their violation obtained in other waj'S, 
as from the parties receiving the letters or packages, or from agents de- 



124 

positing them in the post-office, or others cognizant of the facts. And as 
to objectionable print«l matter, which is ojieu to examination, the regu- 
lations may be enforced in a similar way, by the imposition of penalties 
for their violation through the courts; and in some cases, by the direct 
action of the officers of the postal service. In many instances those offi- 
cers can act upon their own inspection, and from the nature of the case 
must act Avithout other proof, as where the postage is not prepaid, or 
where there is an excess of weight over the amount prescribed, or where 
the object is exposed and shows unmistakably that it is prohibited, as in 
the case of an obscene picture or print. In such cases, no difficulty 
arises, and no principle is violated, in excluding the prohibited articles 
or refusing to forward them. The evidence respecting them is seen by 
every one and is in its nature conclusive." 



The Fourteenth Amendment and the Slaughter-house 
Cases. — Equality of Right in the pursuit. of any Law- 
ful Trade or Avocation Maintained. 

The institution of slavery, with the irritations and re- 
proaches to which it gave rise hetween the States, where 
it existed, and the free States, was the cause of the civil 
war. Its extinction was the natural consequence of the 
success of the forces of the Tnion. The Constitutional 
amendment, which destroyed it, declared that "neither 
slavery nor involuntary servitude, except as a punishment 
for crime, whereof tlie party shall have heen duly con- 
victed, shall exist within the United States or any place 
subject to their jurisdiction." It thus not only abolished 
the existing institution, but forever prohibits its future es- 
tabhshment. And by its comprehensive language it em- 
braces not merely slavery of the African race, as it pre- 
viously existed, but involuntary servitude in any form — 
peonage, villanage, serfage, and all other modes by which 
man can be subjected to compulsory lal)or for the pleasure, 
proiit, or caprice of others. It was intended to make every 
one within the jurisdiction of the IJnited States a free 
man, and as such to allovv him to pursue his happiness by 
the ordinary avocations of life upon the same terms and 
conditions as others. 



■\■2r^ 

To give etr'eet to this purpcise of the jiiiiciKliiuMit, (\n\- 
gress, soon after its adoption, passed the eivil rights act. 
The amendment was ratilied on the ISth of heeemher 
18()o, tliar is, the oHii'ial proclamation of its ratification was 
made on that day. In April of tlie followiiigveai- the ci\il 
rights act was passed. Its first section is as follows: ^' />V if 
eioicted, t)'T,, That all persons born in the Tnited States and 
not subject to any foreign powder, excluding Indians not 
taxed, are hereby declared to be citizens of the United 
States, and such citizens, of every race and color, without 
regard to an}' previous condition of slavery or involuntary 
servitude, except as a punishment for crime, whereof the 
party shall have been duly convicted, shall have the same 
right, in every Stiite and Territory in the United States, 
to make and enforce contracts, to sue, be parties, and give 
evidence, to inherit, purchase, lease, sell, hold, and convey 
real and personal property, and to fidl and equal benefit 
of all laws and proceedings for the security of person and 
property, as is enjoyed by white citizens, and shall be sub- 
ject to like punishment, pains, and penalties, and to none 
other, any law, statute, ordinance, regulation, or custom 
to the contrary notwithstanding."" 

The other sections of the act are designed to secure the 
rights thus declared.* 

The bill for this act was earnestly discussed in Congress 
and its validity was violently assailed. On the one hand 
it was contended that the amendment was only designed 
to do way wuth slavery of the colored race, and, except as 
it affected that institution, it left all the powers of the 
State untouched, with a right in its legislation to discrim- 
inate against persons of that race and others. On the other 
hand it was insisted that the amendment was intended to 
secure to all persons equality of civil rights. Senator 
Trumbull drew the bill and introduced it into the Senate, 
and in opening the discussion upon it in that body stated 

* 14 Statutes-at-Large. '11. 



12G 

that the object of the measure was to ^tjive efrect to the 
declaration of the ainendment, ol)sei-ving that there was 
very httle importance in the general declaration of ab- 
stract truths and principles unless they could be can-ied 
into etiect; — unless the persons who were to be alfected 
by them had some means of availing themselves of their 
benetits ; that the first section of the bill proposed declared 
what were the rights of all persons; that the other sections 
contained the necessary macljiuery to give effect to tbeiii; 
and that if Congress liad not authority to give practical 
effect to the great declaration that slavery shall not exist 
in the United States, by a bill of that kind, nothing would 
be accomplished by the adoption of tlie constitutional 
amendment. 

The Senator then referred to the clause of the Consti- 
tution which declares that '' the citizens of each State shall 
be entitled to all privileges and immunities of citizens in 
the several States," and asked, " What rights are secured 
to the citizens of each State under that provision ? " And 
he answered, " Such fundamental rights as belong to every 
free person; " citing from Story the statement that the in- 
tention of this clause was to confer on citizens, if one may 
so say, a general citizenship, and to communicate all the 
privileges and immunities which the citizens of the same 
State would be entitled to under the like circumstances. 
He also quoted with special approval the language of 
Judge Washington, in Corfield vs. Coryell, that l)y the 
expression privileges and immunities of citizens, as here 
used, were ULeaiit those privileges and immunities which 
are in tlieir nature fundamental, and belong of right to 
the citizens of all free governments. He added that the 
people of the insurgent States had not regarded the col- 
ored race as citizens, and on that principle many of their 
laws making discriminations between the whites and the 
colored people were based, and said : " But it is competent 
for Congress to declare, under the Constitution of the 
United States, who are citizens. If there were any ques- 



127 

tiou iil.oiit il, it would l>c settled l.v tlie ]i:issn,uv of a l:nv 
declaring- all [.ersons horn in the Tnited States to l»e citi- 
zens tliei-eol'. That this hill [)ro|)oses to do. Then they 
will he entitled 'to the riii'hts ol' t'itizens. And what ai'e 
they ? The ;4reat rundamental ri,u-hts set forth in this hill: 
the fi^-ht to ae([nire [)i'operty, the riii'ht to u'o and eonie at 
i)leasnre, the I'iulit to t-n!oi\H' riiidits in the eoinis, to make 
contracts, and to inherit and dispost' of jiroperty. These 
are the very rights that are set forth in this hill as a[)per- 
taining to every freeman." 

Otfier Senators ex[»ressed similar views in advocating 
the measure. The l)ill was passed in hoth Ilonses of Con- 
gress In^ a hirge ma.jorit_y, hut it was vetoed hy the I^-esi- 
dent; it was then passed over tlie veto hy tlie required 
two-tliirds vote. But notwithstanchng its [lassage by a 
hirge majority of both Houses, and over the veto of the 
President, grave doubts of its constitutionahty were enter- 
tained by men of distinguished al>iHty, many of wdiom 
were not hostile to its object. In some of the State courts 
also its validity was denied; and in others, able judges 
dissented from judgments recognizing its obligation. 
Complaints also were made that, notwithstanding the 
amendment abolishing slavery and involuntary servitude, 
except for crime, the freedmen in some of tlie insurrec- 
tionary States were subjected to burdens and disabilities 
in the acquisition and enjoyment of property and in the 
pursuit of happiness, which to a great extent destroyed the 
value of their freedorh. Hostile sentiments were also al- 
leged to exist towards citizens of the Xorth seeking busi- 
ness or residence among them, and towards their own cit- 
izens who adhered to the government of the Union during 
the war. Xo doubt there was much exaggeration in the 
complaints of these things, but they w'ere nevertheless be- 
lieved to be W'Cll founded. To remove the cause of them, 
and to obviate at the same time the grounds of objection 
to the validity of the civil riglits act, or to similar legisla- 
tion, and prevent hostile and discriminating legislation 



128 

by any State a^'ainst citizens of tlie United States, and 
thus secure to all persons within the jurisdiction of every 
State the equal protection of its hnvs, tlie fourteenth 
amendment was brought forward and adopted. This pur- 
pose was avowed in all the discussions of the measure in 
both Houses of Congress. A very instructive and able 
article upon this subject, by "William L. Royall, Esq., of 
Richmond, Va., is found in the number of the Southern 
Law Review for October and November of 1878, in which 
he shows by citations from the remarks of every one who 
participated in the debate, that it was the purpose of its 
framers and advocates to obviate objections to legislation 
similar to that contained in the civil rights act. 

At the session of Congress following the adoption of the 
amendment aboHshing slavery and involuntary servitude, 
propositions for further amendments were numerous. All. 
of them were sent to a committee of the two Houses on 
Reconstruction, consisting of fifteen, of whom Mr. Fes- 
senden was chairnum on the part of the Senate, and Mr. 
Thaddeus Stevens on the part of the House. That com- 
mittee reported on the 30th of April, 186ti, as the result 
of their deliberations, in the form of a joint resolution, an 
amendment to the Constitution. As it came from the 
committee the first section of the proposed amendment 
was as follows : 

" No State shall make or enforce auy law which shall abridge the 
privileges or immunities of citizens of the United States ; nor shall any 
State deprive auy ijerson of life, liberty, or property without due process 
of law, nor deny to any person within its jurisdiction the equal pro- 
tection of the laws." 

The second section provided the basis of representation; 
the third declared that no person who had voluntarily 
aided the late insurrection should have tlie right to vote 
for representatives in Congress, or for electors for Presi- 
dent and Vice-President, until July 4, 1870 ; the fourth 
prohibited the payment of the Confederate debt; and the 
fifth provided that Congress should have power to en- 



129 

t 

fovce tlio provisions of llio article ]>_v :i])])ropriato leii'is- 
latioii. 

The resolution was first hroiii:.'!!! forward in the Itonso, 
the Senate awaitini;: its action. The [•riiu'i]>al (k^l)afe was 
on the third section, which was not thon^'lit to hi' sulii- 
eiently jyiniitive. it, liowever, was ado[>ted without ahera- 
tion. Mr. Stevens o[)ene(l the discussion and said : 

"The lirst section prohibits the States Iroiu abridging the privileges 
and immnnities of citizens of the United States, or unhiwfully depriving 
them of life, liberty, or property, or of denying to any person within 
their jurisdiction the 'equal' protection of the laws. I can hardly be- 
lieve tluit any person can be found who will not admit that every one of 
these provisions is just. They are all asserted, in some form or other, in 
our Declaration or organic law. But the Constitution limits only the 
action of Congress, and is not a limitation on the States. This amend- 
ment supplies that defect, and allows Congress to correct the unjust 
legislation of the St{ites,so far that the law wliich oi)erates upon one man 
shall operate equally upon all." 

Mr. Fink, a Democrat, followed ]Mr. Stevens, and made 
the point that the first section was, in suhstance, the civil 
rights hill which Congress had just passed over the Presi- 
dent's veto; and that bv voting to so amend the Constitu- 
tion of the United States as to put the civil rights l)ill into 
it was the same thing as to admit that the civil rights l)ill 
was Unconstitutional. 

To this Mr. Garfield replied : 

" I am glad to see this first section here, which purposes to hold over 
every American citizen, without regard to color, the protecting shield of 
law. The gentleman who has just taken his seat undertakes to show 
that because we propose to vote for this section we therefore acknowledge 
that the civil rights bill was unconstitutional. He was anticipated in 
that objection by the gentleman from Pennsylvania (Mr. Stevens). The 
civil rights bill is now a part of the law of the land. But every gentle- 
man knows it will cease to be a part of the law whenever the sad moment 
arrives when that gentleman's party comes into power. It is precisely 
for that reason that we propose to lift that great and good law above the 
reach of political strife, beyond the reach of plots and machinations of 
any party, and fix it in the serene sky, in the eternal firmament of the 
Constitution, -where no storm of passion can shake it, and no cloud can 
obscure it. For this reason, and not because I believe the civil rights bill 
unconstitutional, I am glad to see that first section here." 
9 



130 

Mr. Thayer, a Ropnl)lican, in tlio course of his remarks 
said : 

"With regard to the first section of the proposed amendment to the 
Constitution, it simply brings into the Constitution what is found in the 
hill of rights of every State of the Union ; as I understand it, it is hut 
incorporating in the Constitution of the United States the principle of 
the civil rights bill which has lately become a law, and that not, as the 
gentleman from Ohio (Mr. Fink) suggested, because, in the estimation of 
this House, that law cannot be sustained as constitutional, but in order, 
as was justly said by the gentleman from Ohio who last addressed the 
House (Mr. Garfield), that that provision, so necessary for the equal ad- 
ministration of the law, so just in its operation, so necessary for the pro- 
tection of the fundamental rights of citizenship, shall be forever incorpo- 
rated in the Constitution of the United States." 

The language of all the other speakers in the House 
was to the sa.me purport. The first section of the pro- 
posed amendment passed tlie House as it came from the 
committee, and it thus went to the Senate. The health of 
Mr. Fessenden, the chairman of the committee of the 
Senate, disabled him from taking charge of the resolution, 
and it was entrusted to the custody of Mr. Howard, Sena- 
tor from Michigan. In his opening speech, explaining the 
various sections and defining as far as he was able the 
privileges and immunities of a citizen of the United States, 
comprising as well those which he had as a citizen of the 
State as those which he had as a citizen of the United 
States, he said : 

"The great object of the first section of this amendment is, therefore, 
to restrain the power of the States and compel them at all times to re- 
spect their fundamental guarantees." 

It is to be observed that the resolution, as reported from 
the committee and discussed in the House and in the Sen- 
ate, did not have the clause defining citizenship of the 
United States. It opened with the provision " Xo State 
shall make or enforce any law which shall abridge the 
privileges and immunities of citizens of the United States," 
and it is plain that no one who either fiivored or opposed 
the amendment undei'stood that in that form it was de- 
signed to protect only the rights of citizens of the United 



131 

States, and not the rights of citizens of the State. The 
provision deiining citizenship of the Tnited States was 
offered hy the Senator from Michigan, after the resohition 
had passed the House and hceii undrr discussion in the 
Senate for several (hiys. [n the House, Mr. IJinghani, (»!' 
Ohio, had contended that the ci\il rights hill was uncou- 
stitutional, ai'guing that the rights of citizens whieh it un- 
dertook to ])rotect were left hy the Constitution to the pro- 
tection of the States, and that Congress had no right to 
legislate on the suhject. Attention was also called to the 
fact that the act nuule negroes citizens of the United States, 
whereas the Supreme Court had decided in the Dred Scott 
case that no person of African descent could become such 
a citizen. The clause as to citizenship was added to the 
proposed amendment in order to obviate these objections. 
Xo one intimated during the wdiole debate that its purpose 
was to qualify in any respect the subsequent general lan- 
guage of the amendment. 

There w^as a perfect unanimity of opinion between Sena- 
tors and Representatives, Democrats and Republicans, that 
the purpose of the first section was to incorporate the civil 
rights bill into the Constitution, or rather to authorize leg- 
islation of a similar character and thus obviate the objec- 
tions that had been made to that bill on account of the 
supposed limitation of the amendment abolishing slavery 
and the Dred Scott decision. The Republicans contended 
for the adoption of the amendment l)ecause such was its 
purpose and would be its effect ; the Democrats opposed 
it for the same reason.. All agreed in declaring its pur- 
pose; and there was no cUfierence in their understanding 
of it after the declaration of citizenship was added to the 
amendment from what it was previously. Xo one sup- 
posed that this addition limited or changed the character 
of rights which were to be protected. 

The amendment, in its present form, passed both Houses 
of Congress by large majorities, and was ratified hy the 
States on the 28th of July, 1868; that is to say, on that 
day the proclamation of its ratification was made. 



132 

The first cases linder this amendment which came he- 
tore the Supreme Court grew out of an act of the Legis- 
lature of the State of Louisiana, entitled "An act to protect 
the healtli of the city of l^ew Orleans, to locate the stock- 
landings and slaughter-liouses, and to incorporate ' The 
Crescent City Live-Stock Landing and Slaughter-House 
Company,' " which was approv^ed on the 8th of March, 
1869, and went into operation the 1st of June following. 
The act created the corporation mentioned in its title, 
which was composed of seventeen persons designated by 
name, and invested them and their successors with the 
powers usually conferred upon corporations, and certain 
special and exclusive privileges. 

It first declared that it sliouhl not be lawful, after the 
1st day of June, 1869, to land, keep, or slaughter any 
animals, or to have, keep, or establish any stock-landing, 
yards, slaughter-houses, or abattoirs within the city of Xew 
Orleans, or the parishes of Orleans, Jeflerson, and St. Ber- 
nard, except as provided in the act, and imposed a penalty 
of $250 for each violation of its provisions. 

The act then authorized the corporation to establish and 
erect, within the parish of St. Bernard and the corporate 
limits of Xew Oi'leans, at a designated place, (which was 
on the river below the occupied portions of the city,) 
wharves, stables, sheds, yards, and buildings necessary to 
land, stable, shelter, protect, and preserve all kinds of 
horses, mules, cattle, and other animals, and provided that 
animals destined for sale or slaughter in the city of New 
Orleans or its environs, should be landed at the wharves and 
yards of this company and be there yarded, sheltered, and 
protected, if necessary; and that the company should be 
entitled to certain prescribed fees for the use of its wharves 
and for each animal landed, and be authorized to detain 
the animals until the fees were paid, and if not paid within 
fifteen days to take proceedings for their sale. Every 
person violating any of these provisions, or landing, yard- 
ing, or keeping animals elsewhere was subjected to a fine 
of $250. - - ■ 



The act tlien required tlio eoriioration to erect a ^I'aiul 
slangliter-lionse ol' .^uHicient (liineiisions to accommodate 
all butchers, in wliieh tive hundred auiiiuds might be 
sUiughtered a day, with a sullieient uundier of sheds and 
stal)h's for the stock I'eceived at the [)ort of New Orhnins, 
and provided that when these buihlings were completed 
and thrown open for use, public notice should be given 
for tiiirty days, and within that time all other stock-land- 
ings and slaughter-houses within the pai'ishes of Orleans, 
Jetlerson,and kSt. J3ernard were to he closed, and it should 
no longer be lawful to slaughter animals in them, the 
meat of which was destined for sale within those parishes. 

The act then [irovided that the company should receive 
for every animal slaughtered in its buildings certain pre- 
scribed fees, besides the head, feet, gore, and entrails of 
all animals, except of swine. 

Other provisions of the act required the inspection of 
the animals before they were slaughtered. The exclusive 
privileges mentioned were granted for the period of twenty- 
five years. The language of the act was that the corpora- 
tion should 'Hiave the soJe <ind exdasive pniilcge o^ con- 
ducting and carrying on the live-stock landing and slaugh- 
ter-house business, within the limits and privilegQs granted 
by the provisions of the act ; " and, after the 1st of Jvme, 
1869, should have " tJie exdusice pi'!nlcf/e of having landed 
at their landing places all animals intended for sale or 
slaughter " in the parishes of Orleans and Jeflerson, and 
" the exdusice pridler/e of having slaughtered" in its slaugh- 
ter-houses all animals the meat of which w^as intended for 
sale in these parishes. 

The character of these special privileges will be better 
understood when the extent of country and of population 
which they aifected are stated. The parish of Orleans con- 
tains an area of country of 150 square miles ; the j)^i'ish 
of Jefferson, 384 square miles; and the parish of St. Ber- 
nard, 620 square miles. The thi'ee parishes togetlier con- 
tain an area of 1,154 square miles, and they had a popu- 
lation of between two and three hundred thousand people. 



134 

Previous to the passage of the act there were more than 
a thousand persons in the territory mentioned who sup- 
ported themselves and their families by the business of 
procuring, preparing, and seUing animal food, but by the 
act in question they were all deprived of the business in 
which they were thus engaged, or subjected to onerous 
conditions in its prosecution. 

Three cases were brought involving the validity of tliis 
legislation. The first was brought by an association of 
butchers to pi-event the assertion and enforcement of the 
privileges. One was brought by tbe attorney-general of 
the State to protect the corporation in the enjoyment of 
those privileges, and to prevent an association of stock- 
dealers and l)utchers from acquiring a tract of land in the 
same district with the corporation, upon which to erect 
suitable buildings for receiving, kee])ing, and slaughtering 
cattle and preparing animal food for market. The third 
case was brought by the corporation itself to I'estrain the 
defendants from carrying on a l)usiuess similar to its own, 
in violation of its alleged exclusive privileges. 

The substance of the averments of the parties complain- 
ing of this legislation was, that prior to its adoption they 
were engaged in the lawful and necessary business of pro- 
curlno- aiid bringing to tbe parishes mentioned animals 
suitable for human food, and in preparing such food for 
market; that in the i»rosecuti(m of their business they had 
provided in those parishes suitable establishments for land- 
ing, sheltering, keeping, and slaughtering cattle, and the 
sale of meat; that with their association about four hun- 
dred persons were connected, and that in the parishes 
named about a thousand persons were engaged in procur- 
ing, preparing, and selling animal food. And they com- 
plained that the business of landing, yarding, and keep- 
ing, within the parishes named, cattle intended for sale or 
slaughter, which was lawful for them to pursue before the 
1st day of June, 1869, was made by that act unlawful for 
any one except the corporation named; and that the busi- 



ncss oC slaiiu'litoriiiii- cnttK' and pi'cpai'iiiu' animal W^nd for 
inai'kot, which it was lawful for thnu to piirsuc in thoso 
parishes hcforc that dav, was inailc \)y tliat act unlawful 
tor lluan to [)ursuc afterwards, except in llie huildinu-s i.f 
the citnipanv. and U[»on payment of certain [H'escrihed 
fees, and a surrender of a valuahle portion of each animal 
slaughtercch And tliey contended that the hiwful business 
of huidin^',yardinii-, slielterin2:,and keepini;- cattle intended 
for sale or slau^'hter, wliich they, in connnon witli every 
indiviihial in the community of the three parislies, had a 
right to follow, could not he thus taken from them and 
given over for a pei'iod of twenty-five years tor the sole 
and exclusive enjoyment of a ci^rporation of seventeen 
persons, or of anybody else. And they also contended 
that the lawful and necessary business of slaughtering cat- 
tle and preparing animal food for market, which they and 
all other individuals had a right to follow, could not be 
thus restricted, within this terntory of 1,154 square miles, 
to the btiildings of this corporation, or be subjected to 
tribute for the emolument of that body. 

The Supreme Court of the State of Louisiana held the 
act constitutional and gave judgment in all the cases for 
the protection of the exclusive privileges of the corpora- 
tion. The cases were then brought to the Supreme Court 
of the United States and were there twice argued with 
great ability; Judge Campbell, formerly a member of the 
court, and Mr. Fellowes appearing against the act; and Sen- 
ator Carpenter and Mr. Durant for the corporation. The 
exclusive privileges were assailed as being in conflict with 
the 13th amendment, and also with the inhibition of the 
14th amendment, declaring that "ISo State shall make or 
enforce any law which shall abridge the privileges or im- 
munities of citizens of the United States." 

The Supreme Court, by a vote of five of its members 
against four, affirmed the judgment of the Louisiana court, 
holding that the legislation of Louisiana gave no special 
privileges which the State could not grant, and that the 



136 

foui-tcGiith amendment only iiihi])ited an invasion by 
the States of the rights of.citizens of the United States as 
distingnislied from those of citizens of the State. Judges 
Chiibrd, Davis, Strong, Miller, and Hunt composed the 
majority. Chief Justice Chase and Judges Swayne, Field, 
and Bradley dissented from this view. Judge Miller wrote 
the opinion of the majorit}'. Judges Field, Bradley, and 
Swayne each wrote a dissenting opinion. The Chief Jus- 
tice concurred with Judge Field, as did also Judges Swayne 
and Bradley, although they each wrote a separate opinion. 

Both the majority and minority not only considered the 
claim made that the legislation of Louisiana was to he re- 
garded as the exercise of the police power of the State; but 
they gave an extended examination to the inhibition men- 
tioned contained in the fourteenth amendment. 

As to the police power, the majority were of opinion that 
the legislation of Jjouisiana was passed in its legitimate ex- 
ercise, and made reference to the necessity of having the 
landing of live-stock in large droves from steamboats on 
the baidc of the river and from railroad trains limited to 
particular places, so as to secure the safety and comfort 
of the people of the city; and observed that it could not 
be " injurious to the general community that while the duty 
of making ample preparation for this is imposed upon a few 
men, or a corporation, they should, to enable them to do 
it successfully, have the exclusive right of providing such 
landing places, and receiving a fair compensation for the 
service." 

And as to the slaughter-house privilege, they said, speak- 
ing through Judge Miller: 

" It is not, and cannot be successfully controverted, that it is both the 
right and the duty of the legislative body — the supreme power of the 
State or municipality — to prescribe and determine the localities where 
the business of slaughtering for a great city may be conducted. To do 
this effectively it is indispensable that all persons who slaughter animals 
for food shall do it in those places and no where else. The statute under 
consideration defines these localities and forbids slaughtering in any 
other. It does not, as has been asserted, prevent the butcher from doing 



137 

liis own slaiiglitcring. On tlir rontrary, tlir Sl;uif;litcr-Housc Company 
is required, under a heavy penalty, to permit any person wlio wishes to 
do so, to ahiu;!,hter in their houses, and they are bound to make ample 
l>rovisi<iii lor the convenience of all the slaughtering for the entire city. 
Tlie ))utch(r, then, is still permitted to slaughter, to prepare, and to sell 
his own meats ; but he is required to slaughter at a specilied place and to 
l)ay a reasonable compensation for tlie use of tlie accommodations fur- 
nished him at that place. 

'•The wisdom of the monopolj' granted by tiie legislature may be open 
to questi<m, but it is difficult to see a justification for the assertion that 
the butchers are deprived of the right to labor in their o(<u])ation, or the 
people of their daily service in preparing food, or how this statute, with 
the duties and guards imposL>d upon the conijiany, can be said to destroy 
the bu.siness of the butcher, or seriously interfere with its pursuit. The 
l)ower here exercised by the Legislature of Louisiana is. in its essential 
nature, one which has been, up to the present period in the constitutional 
history of this country, always conceded to belong to the States, however 
it may noir l)e ([uestioned in some of its details," 

lie tlu'ii cites from Kent and Sliaw as to tlie extent of 
that power, and continues : 

" This power is, and must be, from its \evy nature, incapable of any 
A-ery exact definition or limitation. Upon it depends the security of so- 
cial order, the life and health of the citizen, the comfort of an existence 
in a thickly populated community, the enjoyment of private and social 
life, and the beneficial use of property. ' It extends," says another eminent 
judge, 'to the protection of the lives, limbs, health, comfort, and quiet of 
all persons, and the protection of all property within the State ; . . . and 
persons and property are subjected to all kinds of restraints and burdens 
in order to secure the general comfort, health, and prosperity' of the State. 
Of the perfect right of the legislature to do this no question ever was, or, 
upon acknowledged general principles, ever can be made, so far as natural 
persons are concerned.' '' 

To tliis proposition the minority of tlie court rephed, 
speaking through Judge Field : 

" That power [the police power of the State] undoubtedly extends to 
all regulations aflfecting the health, good order, morals, peace, and safety 
of society, and is exercised on a great variety of subjects, and in almost 
numberless ways. All sorts of restrictions and burdens are imposed 
under it, and when these are not in conflict with any constitutional pro- 
hibitions or fundamental principles, they cannot be successfully^ assailed 
in a judicial tribunal. With this power of the State and its legitimate 
exercise I shall not ditfcr from the majority of the court. But under the 
pretence of prescribing a police regulation the State cannot be permitted 
to encroach upon any of the just rights of the citizen, which the Consti- 
tution intended to secure against abridgment. 



138 

" In the law in question there are only two provisions which can prop- 
erly he called police regulations— the one which requires the landing and 
slaughtering of animals helow the city of New Orleans, and the other 
which requires the inspection of the animals before they are slaughtered. 
When these requirements are complied with the sanitary purposes of the 
act are accomplished. In all other particulars the act is a mere grant to 
a corporation created by it of special and exclusive privileges by which 
the health of the city is iu no way promoted. It is plain that if the 
corporation can, without endangering the health of the public, carry on 
the business of landing, keeping, and slaughtering cattle within a district 
below the city embracing an area of over a thousand square miles, it 
would not endanger the public health if other persons were also per- 
mitted to carry on the same business within the same district under 
similar conditions as to the inspection of the animals. The health of the 
city might require the removal from its limits and suburbs of all build- 
ings for keeping and slaughtering cattle, but no sijch object could po.ssi- 
bly justify legislation removing such buildings from a large part of the 
State for the benefit of a single corporation. The pretence of sanitary 
regulations for the grant of the exclusive privileges is a shallow one, 
which merits only this passing notice. 

"The act of Louisiana presents the naked case, unaccompanied by any 
public considerations, where a right to pursue a lawful and necessary 
calling, pieviously enjoyed by every citizen, and in connection with which 
a thousand persons were daily employed, is taken away and vested ex- 
clusively for twenty-five years, for an extensive district and a large pop- 
ulation, in a single corxjoration, or its exercise is for that period restricted 
to the establishments of the corporation, and there allowed only upon 
onerous conditions. 

"If e.Kclusive privileges of this character can be granted to a corpora- 
tion of seventeen persons, they may, in the discretion of the legislature, 
be equally granted to a single individual. If they may be granted for 
twenty-five years they may be equally granted lor a century, and in per- 
petuity. If they may be granted for the landing and keeping of animals 
intended for sale or slaughter they may be equally granted for the landing 
and storing of grain and other products of the earth, or for any article of 
commei'ce. If they may be granted for structures in which animal food 
is prepared for market they may be equally granted for structures in 
which farinaceous or vegetable food is prepared. They may be granted 
for any of the pursuits of human industry, even in its most simple and 
common forms. Indeed, upon the theory on which the exclusive privi- 
leges granted by the act in question are sustained, there is no monopoly, 
in the most odious form, which may not be upheld." 

The great interest, however, manifested in the opinions 
of the court, both in that of the majority and in those of 
the minority, ai'ose from the discussion the}' contained as 



180 

to tlic iniiiort iiiid iiieuuing ol' the inhibition of the foui" 
tceiith aiiKMuhni'ut. 

'VUv majority hohl that the State was antliori^.ed to eon- 
ler the speeial [»rivik'u-es unless i-esti'aine;! hy that auiend- 
nient. Its tirst seetion, the only one whieh had any bear- 
inu' ni>on the question presented, is as lollows : "All per- 
sons Itoi'u or naturahzed in the Tnited Spates, and 8n1)ject 
to the juris(hetion thereof, are eiti/AMisof the I'nited States 
and of the State wherein tfiey resi(h', Xo State shall 
make or enforee any law whieh shall ahrid_<;'e the [trivi- 
leges or immunities of citizens of tlu' United States, nor 
sliall any State deprive any pei'son of life, liberty, or [»rop- 
erty without due proeess of law, nor deny to any person 
within its jurisdiction the equal protection of tlie laws." 

The majority of the court in their opinion first n'ive a 
history of the three amendments adopted since the war, 
the thirteenth, fourteenth and fifteenth, and state that their 
pervading purpose was the freedom of the slave race, the 
security and firm estahlishment of their freedom, and 
the protection of the newly-made freeman and citizen 
from the oppressions of those who had tH)rvnerly exercised 
unlimited dominion over them, and that in any fair and 
just construction of any section or phrase of the amend- 
ments it is necessary to keep this pervading purpose in 
view. They then take up the fourteenth amendment and 
observe that it opens with a definition of citizenship, not 
only of the United States, hut of tlie States, and that it 
recognizes and estahlishes a distinction Ijetween the two. 
Their language is as lollows: 

" Not only nmy a mau be a citizen of the United States without being 
a citizen of a State, but an important element is necessary to convert the 
former into the latter. He must reside within the State to make him a 
citizen of it, but it is only necessary that he should be born ur natural- 
ized in the United States to be a citizen of the Union. 

" It is quite clear, then, that there is a citizenship of the United States 
and a citizenship of a State, which are distinct from each other, and which 
depend upon different characteristics or circumstances in the individual. 

"We think this distinction and its explicit recognition in fiiis amend- 
ment of great weight in this argument, because the next paragraph of 



140 

this same section, which is the one mainly relied on by the plaintiffs in 
error, speaks only of privileges and immunities of citizens of the United 
States, and does not speak of those of citizens of the several States. The 
argument, however, in favor of the plaintiffs rests wholly on the assump- 
tion that the citizenship is the same, and the privileges and immunities 
guaranteed by the clause are the same, 

"The language is, 'No State shall make or enforce any law which 
shall abridge the privileges or immunities of citizens of tit e United States.'' 
It is a little remarkable, if this clause was intended as a protection to 
the citizen of a State against "the legislative power of his own State, that 
the word citizen of the State should be left out when it is so carefully 
used, and used in (;ontra«listinction to citizens of the United States, in the 
Aery sentence which precedes it. It is too clear for argument that the 
change in phraseology was adopted understandingly and with a purpose. 

" Of the privileges and immunities of the citizen of the United Stales, 
and of the privileges and immunities of the citizen of the State, and 
what they respectively are we will presently consider; but we wish to 
state here that it is only the former which are placed by this clau.se 
under the protection of the federal Constitution, and that the latter, 
whatever they may be, are not intended to have any additional protec- 
tion by this paragraph of the amendment. 

" If, then, there is a difference between the privileges and immunities 
belonging to a citizen of the United States as such, the latter must rest 
for their security and protection where they have heretofore rested; for 
they are not embraced by this paragraph of the amendment." 

The doctrine advanced in this passage is the special 
feature o!" the opinion and has been the occasion of dis- 
cussion and disagreement among judges and members of 
the profession throughout the countr3^ 

The majority then consider the meaning attached to the 
terras "privileges and immunities " contained in the amend- 
ment and adopt substantially as correct the view expressed 
by Judge Washington in Cortield vs. Coryell, that they 
eml)race those rights of citizens which are fundamental in 
their nature, such as belong to citizens of all free govern- 
ments; and hold that their protection rests with the States 
and not with the United States. Their language is as 
follows : 

" It would be the vainest show of learning to attempt to prove by cita- 
tions of authority, that up to the adoption of the recent amendments no 
claim or pretence was set up that those rights depended on the federal gov- 
ernment for their existence or protection, beyond the very few express 



141 

limitationa wliich the federal ("onstitntion imposed nimn the States — 
sueh, for instanee, as the prohibition against ex pont farto laws, bills of at- 
tainder, and laws impairing the obligation of eontracts. Bnt with th»5 
exception of th(>se and a few other restrietiona, the entire domain of the 
])rivileges and immunities of citizens of the States, as above delined, lay 
■within the constitutional and legislative jiower of the States, and with- 
out that of the federal government. Was it the purpose of the four- 
teenth aineiwlment, by the simple declaration that no State should make 
or enforce any law which shall abridge the privileges and imuuniitics of 
citizens of the United States, to transfer the security and protection of all 
the civil rights which we have mentioned, from the States to the federal 
government? And where it is declared that Congress shall have the 
power to enforce that article, was it intended to bring within the power 
of Congress the entire domain of civil rights heretofore belonging exclu- 
sively to the States ? 

"All this and more must follow, if the proposition of the plaintiffs in 
error be sound, for not only are these rights subject to the control of Con- 
gress, whenever in its discretion any of them are supposed to b§ abridged 
by State legislation, but that body may also pass laws in advance, limit- 
ing and restricting the exercise of legislative power by the States, in their 
most ordinary and most useful functions, as in its judgment it may think 
proper on all such subjects. And still further, such a construction fol- 
lowed by the reversal of the judgments of the Supreme Court of Louisiana 
in these cases, would constitute this court a perpetual censor npon all 
legislation of the States, on the civil rights of their own citizens, with 
authority to nullify such as it did not approve as consistent with those 
rights as they existed at the time of the adoption of this amendment." 

The passage here given is generally cited a.-^ -showing 
the evil consequences of any other construction than the 
one adopted. The majority then refer to such [)rivileges 
and immunities of citizens of the United States as they 
suppose are intended, when the States are iuhihited from 
making or enforcing any law abridging them. These are 
the right of the citizen to come to the seat of government, 
to assert any claim he may have upon that government, 
to transact any business he may have with it, to seek its 
protection, to share its offices, to eno-ai-'e in administerino: 
its functions, to have free access to its seaports, to demand 
the care and protection of that goverinnent over liis life, 
liberty, and property on the high seas, or within the juris- 
diction of a foreign government; the right to peaceably 
assemble and petition for redress of grievances; the right 



142 

to use the navio-al.le waters of the United States, and oilier 
similar rights. 

To these positions of the majoir*y of the court several 
objections naturally arise. 

In the first place, if the inhibition upon the States does 
not refer to the fundamental rights of citizens, such as be- 
long to the citizens of all free governments, such as are 
expressed in the Declaration of Independence as the in- 
alienable rights of men, it is dithcult to see what was ac- 
complished by its insertion in the amendment. The priv- 
ileges and immunities which citizens previously enjoyed 
under the Constitution and laws of the United States, no 
State could lawfully interfere with. Any attempted in- 
terference with them could have l)eeu successfully resisted 
through the courts. The parties who drafted and advo- 
cated the fourteenth amendment thought that they would 
obtain thereby additional security for the rights of a citi- 
zen of the United States, not that they were merely con- 
tending for words which could have no eihcacy beyond 
provisions already in force. 

In the second place, the construction .asserted entirely 
io-nores the avowed purpose of the framers of the amend- 
ment, as stated in the discussion of the measure in both 
Houses of Congress. There w^as an entire concurrence of 
views on the part of all persons — Democrats and Repub- 
licans, Senators and Representatives — that the object of 
the amendment was to obviate the objections which had 
been urged to the validity of the civil rights act, or rather 
to legislation of a similar character. That act had stated 
in express terms that citizens of the United States had the 
right -Ho make and enforce contracts, to sue, be parties 
and give evidence, to inherit, purchase, lease, sell, hold, 
and convey real and personal property, and to full and 
equal benefit of all the laws and proceedings for the secui'- 
ity of person and property." These were rights which, 
according to the interpretation of the majority, are now 
dependent for their protection upon the States alone. 



143 

Tliongli the (k'l)iites in Conii'ross cannot be w^ed to qualify 
tlie meaning of lano;naii"o, which i.s not snsceptil)lo of niis- 
constrnction, they can be resorted to in oi'diM- to sliow the 
general i)ni"[)ose of the framers of legishition, an<l it is cer- 
tainly a matter of no sHght significance that the [turpo.-e 
of the amendment, as tlius shown, is consistent with tiie 
ol)vious meaning of its language. "All persons Ix^rn oi- 
naturahzed in the United States, and subject to the juris- 
diction thereof, are citizensof the United States and of the 
State wherein they reside." The citizenship of the United 
States is the general and })rimary citizen.ship which accom- 
panies the individual everywhere. The State citizenship 
is local and movable at the option of the party by a mere 
change of his residence. The command upon the States 
is not to abridge the privileges and immunities of the cit- 
izen of the United States, and thus all the privileges and 
immunities of the citizen, be he of tlie United States or 
be lie of the State, are secured. 

In the third place, the alleged evil consequences of the 
opposite construction are purely imaginary. The inhibi- 
tion of the amendment is upon the States, and if only ap- 
propriate legislation be adopted for its enforcement, no 
such interference with theirlegislation.no such censorship 
over it as indicated in the opinion, can exist. Legislation 
to annul the act of a State can only be approjiriate so far 
as it authorizes application to the courts to meet the exi- 
gency, and by their action the act which is forl)idden will 
be declared null or its enforcement restrained. 

Every inhil)iti()n in the amendment every patriot ought 
to desire to see enforced. Can any one object to the clause 
forbidding a State to abridge the privileges and immimi- 
ties of citizens of the United States ; that is, to take away 
or impaii- any of their fundamental rights ? Can any one 
find fault with the clause which declares that no State shall 
deprive any person of life, liljerty, or property without due 
process of law "r Can any one object to the [)rovision 
which declares that no State shall deny to any person 



144 

within its jurisdiction the. equal protection of its laws ? 
Surely not. The amendment does not limit the subjects 
upon which the States can legislate ; it only inhibits dis- 
criminating and partial enactments favoring some to the 
impairment of the rights of others; it simply requires that 
every one shall be allowed to pursue his happiness unre- 
strained except by just, equal, and impartial laws. 

The amendment has been the subject of complaint from 
the manner in which legislation has attempted to enforce 
its prohibitions, not from the prohibitions themselves. 
That manner has in most cases been clearly wrong. Tlie 
only appropriate manner is that which has been applied 
with reference to other prohibitions previously existing in 
the Constitution, such as the prohi])ition against a State 
passing a law impairing the obligation of contracts, or a 
bill of attainder, or an e.r post ftcto law. No nuichinery is 
necessary to annul any legislation in disregard of these 
prohibitions, except such as may facihtate proceedings for 
that purpose in the courts; and no other legislation can be 
appropriate as against the action of a State. 

The answers of the dissenting judges to the opinion of 
the majority were full, and are generally regarded l)y the 
profession as satisfactory. An extended citation is made 
from the one delivered by Judge Field. He considered 
the law of Louisiana in the Hght of the thirteenth and 
fourteenth amendments, although he only rested his judg- 
ment on the fourteenth. 

" That, amendment [the thirteenth] prohibits slavery and involuntary 
servitude, except as a punishment for crime, but I have not supposed it 
was susceptible of a construction which would cover the enactment in 
question. I have been so accustomed to regard it as intended to meet 
that form of slavery which had previously prevailed in this country, and 
to which the recent civil war owed its existence, that I was not prepared, 
nor am I yet, to give it the extent and force ascribed by counsel. Still it 
is evident that the language of the amendment is not used in a restrictive 
sense. It is not confined to African slavery alone. It is general and uni- 
versal in its application. Slavery of white men as well as of black men 
is prohibited, and not merely slavery in the strict sense of the term, but 
involuntary servitude in every form. 



14') 

•'The words 'involuntary servitude' have not been the subject of any 
judicial or legislative exposition, that I am aware of, in this country, ex- 
cept that which is found in the civil rights act, which will be hereaflcr 
noticed. It is, however, clear that they include suniething- more than 
slavery in the strict sense of the term ; they include also serfage, vas- 
salage, villanage, peonage, and all other forms of compulsory service for 
the mere benelit or pleasure of others. Xor is this the full import of the 
terms. The abolition of slavery and inv((lunt;ny servitude was intended 
to make every one born in this cimntry a freeman, and as sueli, to give 
to him the right to pursue the ordinary avocations of life without other 
restraint than such as affects all others, and to enjoy eciually Avith them 
the fruits of his labor. A prohibition to him to XHirsue certain callings, 
open to others of the same age, condition, and sex, or to reside in phmes 
where others are permitted to live, would so far deprive him of the rights 
of a freeman, and would place him, as respects (Others, in a condition of 
servitude. A person allowed to jjursue only one trade or calling, and 
only in one locality of the country, would not be, in the strict sense of 
the term, in a condition of slavery, but probably none would deny that 
he would be in a condition of servitude. Pie certainly would not possess 
the liberties nor enjoy the privileges of a freeman. The compulsion 
which would force him to labor even for his own benetit only in one 
direction, or in one place, would be almost as oppressive, and nearly as 
great an invasion of his liberty as the compulsion which would force him 
to labor for the benefit or pleasure of another, and would equally con- 
stitute an element of servitude. The counsel of the idaintiffs in error, 
therefore, contend that 'wherever a law of a State or a law of the United 
States makes a discrimination between classes of persons, which deprives 
tlie one class of their freedom or their property, or which makes a caste 
of them, to subserve the power, jiride, avarice, vanity, or vengeance of 
others,' there involuntary servitude exists within the meaning of the 
thirteenth amendment. 

'' It is not necessary, in my judgment, tor the dispositi<ni of the present 
case in favor of the plaintiffs in error, to acce])t as entirely correct this 
conclusion of counsel. It, however, finds support in the act of Congress 
known as the civil rights act, which was framed and adopted upon a con- 
struction of the thirteenth amendment, giving to its language a similar 
breadth. That amendment was ratified on the eighteenth of December, 
1865,* and in April of the following year the civil rights act was passed.f 
Its first section declares that all persons born in the United States, and 
not subject to any foreign power, excluding Indians not taxed, are 'citi- 
zens of the United States,' and that "such citizens, of every race and color, 
without regard to any previous condition of slavery, or involuntary servi- 
tude, except as a punishment for crime, whereof the party shall have 
been duly convicted, shall have the same right in every State and terri- 

* 13 Stat, at Large, 774. f 14 lb.. 27. 

10 



146 

tory in the United States, to make and enforce contracts, to sue, be par- 
ties, and give evidence, to inherit, purchase, lease, sell, hold, and convey 
real and personal property, and to full and equal benefit of all laws and 
proceedings for the .security of person and property, as enjoyed by white 
citizens.' 

" This legislation was supported upon the theorj^ that citizens of the 
United States as such were entitled to the rights and privileges enumer- 
ated, and that to deny to any such citizen equality in these rights and 
privileges with others, was, to the extent of the denial; subjecting him to 
an involuutary servitude. Senator Trumbull, who drew the act and who 
was its earnest advocate in the Senate, stated, on opening the discussion 
upon it in that body, that the measure was intended to give effect to the 
declaration of the amendment, and to secure to all persons in the United 
States practical freedom. After referring to several statutes passed in 
some of the Southern States, discriminating between the freedmen and 
white citizens, and after citing the definition of civil liberty given by 
Blackstone, the Senator said: 'I take it that any statute which is not 
equal to all, and which deprives any citizen of civil rights, which are 
secured toother citizens, is an unjust encroachment upon his liberty; 
and it is in fact a badge of servitude which by the Constitution is pro- 
hibited.' * 

" By the act of Louisiana, within the three parishes named, a territory 
exceeding one thousand one hundred square miles, and embracing over 
two hundred thousand people, every man who pursues the business of 
preparing animal food for market must take his animals to the build- 
ings of the favored company, and must perform his work in themj and 
for the use of the buildings must pay a prescribed tribute to the company, 
and leave with it a valuable portion of each animal slaughtered. Every 
man in these parishes who has a horse or other animal for sale, must carry 
him to the yards and stables of this company, and for their use pay a 
like tribute. He is not allowed to do his work in his own buildings, or 
to take his animals to his own stables or keep them in his own yards, 
even though they should be erected in the same district as the buildings, 
stables, and yards of the company, and that district embraces over eleven 
hundred square miles. The prohibition imposed by this act upon butch- 
ers and dealers in cattle in these parivshes, and the special privileges con- 
ferred upon the favored corporation, are similar in principle and as odious 
in character as the restrictions imposed in the last century upon the peas- 
antry in some parts of France, where, as says a French writer, the peas- 
ant was prohibited ' to hunt on his own lands, to fish in his own waters, 
to grind at his own mill, to cook at his own oven, to dry his clothes on 
his own machines, to whet his instruments at his own grindstone, to 
make his own wine, his oil, and his cider at his own press, .... or 
to sell his commodities at the public market.' The exclusive right to all 

* Cong. Globe, 1st Sess., 39th Cong.. Part I., p. 474. 



147 

these privileges was vested in the lords of the vicinage. ' The history of 
the most execrable tyranny of ancient times,' says the same writer. ' offers 
nothing lilce this. Tliis category of oppressions cannot be applied to a 
free man, or to the peasant, except in violation of his rights.' 

■■ But if the exclusive privileges conferred upon the Louisiana corpor- 
ation can he sustained, it is not perceived wliy exclusive privileges for 
the construction and keeping of ovens, niacliiues, grindstones, wine- 
presses, and for all the numerous trades and pursuits for the prosecution 
of which buildings are required, may not be equally bestowtxl on other 
corporations or private individuals, and for periods of indetinite duration. 

•'It is not necessary, however, as I have said, to rest my objections to 
the act in question upon the terms and meaning of the thirteenth amend- 
ment. The provisions of the fourteenth amendment, which is properly 
a supplement to the thirteenth, cover, in my judgmeiit, the case before 
us, and inhibit auy legislation which confers special and exclusive priv- 
ileges like these under consideration. The amendment was adopted to 
obviate objections which had been raised and pressed with great force to 
the validity of the civil rights act, and to place the common rights of 
American citizens under the protection of the national government. It 
tirst declares that ' all persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the United States 
and of the State wherein they reside.' It then declares that ' no State 
shall make or enforce any law which shall abridge the privileges or im- 
munities of citizens of the United States, nor shall auy State depri\e 
auy person of life, liberty, or property without due i)rocess of law, nor 
deny to any person within its jurisdiction the equal protection of the 
laws.' 

" The first clause of this amendment determines who are citizens of the 
United States, and how their citizenship is created. Before its enactment 
there was much diversit}' of opinion among jurists and statesmen whether 
there was any such citizen.ship independent of that of the State, and, if 
any existed, as to the manner in which it originated. With a great num- 
ber the opinion prevailed that there was no such citizenship independent 
of the citizenship of the State. Such was the opinion of Mr. Calhoun and 
the class represented bj' him. In his celebrated speech in the Senate upon 
the force bill, in 1833, referring to the reliance expressed by a Senator 
upon the fact that we are citizens of the United States, he said : ' If by 
citizen of the United States he means a citizen at large, one whose citi- 
zenship extends to the entire geographical limits of the country without 
having a local citizenship in some State or territory, a sort of citizen of 
the world, all I have to say is that such a citizen would be a perfect non- 
descript ; that not a single individual of this description can be found in 
the entire mass of our population. Notwithstanding all the pomp and 
display of eloquence on the occasion, every citizen is a citizen of some 
State or territory, and as such, under an express provision of the- Consti- 
tution, is entitled to all the privileges and immunities of citizens of the 



148 

several States; and it is in this aneT no other sense that we are citizens of 
the United States.'-' 

"In the Dred Scott case this subject of citizenship of the United States 
was fully and elaborately discussed. The exposition in the opinion of 
Mr. Justice Curtis has been generally accepted by the profession of the 
country as the one containing the soundest views of constitutional law. 
And he held that, under the Constitution, citizenship of the United States 
in reference to natives was dependent upon citizenship in the several 
States, under their constitutions and laws. 

" The Chief Justice in that case, and the majority of the court with 
him, held that the words 'people of the United States ' and 'citizens' 
were synonymous terms ; that the people of the respective States were 
the parties to the Constitution ; that these people consisted of the free 
inhabitants of those States; that they had provided in their Consti- 
tution for the adoption of an uuifin-m rule of naturalization ; that they 
and their descendants and persons naturalized were the only persons who 
could be citizens of the United States, and that it was not in the power 
of any State to invest any other person with citizenship so that h'e could 
enjoy the privileges of a citizen uuder the Constitution, and that, there- 
fore, the descendants of persons brought to this country and sold as slaves 
were not, and could not be, citizens within the meaning of the Consti- 
tution. 

" The first clause of the fourteenth amendment changes this whole 
subject, and removes it from the region of discussion and doubt. It rec- 
ognizes in express terms, if it does not create, citizens of the United 
States, and it makes their citizenship dependent upon the place of their 
birth, or the tact of their adoption, and not upon the constitution or 
laws of any State or the condition of their ancestry. A citizen of a State 
is now only a citizen of the United States residing in that State. The 
fundamental rights, privileges, and immunities which belong to him as 
a free man and a free citizen, now belong to liim as a citizen of the United 
States, and are not dependent upon his citizenship of any State. The 
exercise of these rights and privileges, and the degree of enjoyment re- 
ceived from such exercise, are always more or less aifected by the condi- 
tion and the local institutions of the State, or city, or town where he re- 
sides. They are thus affected in a State by the wisdom of its laws, the 
ability of its officers, the efficiency of its magistrates, the education and 
morals of its people, and by many other considerations. This is a result 
which follows from the constitution of society, and can never be avoided, 
but in no other way can they be affected by the action of the State, or 
by the residence of the citizen therein. They do not derive their exist- 
ence from its legislation, and cannot be destroyed by its power. 

" The amendment does not attempt to confer any new privileges or 
immunities upon citizens, or to enumerate or define those already exist- 

* Calhoun's Works, vol. 2, p. 242. 



149 

iiig-. It assumes that there are such privileges nnd iinninnities which he- 
h)ng of right to citizens as such, and ordains that they shall not he al)ridged 
l)y state legislation. If this inhihition has no reference to privileges and 
inimunities of this character, hut only refers, as held hy the majority of 
tlie court in their opinion, to such privilege.^ and immunities as were he- 
fore lis lulopl ion specially dcsiguatcd in the Constitution or necessarily 
iuii)lie(l as hclonging to citi/eus of the Inited States, it was a vain and 
idle enactment, which accoaiplislu-d notliing, and most unnecessarily ex- 
cited Congress and the i.e.. pl<> on its passage. Willi pri\ ih'ges and im- 
munities thus designated or implied, no State couhl ever have interfered 
l)y its laws, and no new con.stitutional provision was required to inhil)it 
such interference. The supremacy of the Constitution and the laws of 
the United States always controlled any State legislation of that char- 
acter. But if the amendment refers to the natural and inalienahle rights 
which helong to all citizens, the inhihiti(»n has a profound signiticauce 
and consequence. 

"What, then, are the privileges and immunities whicli are secured 
against abridgment hy State legislation ? 

" In the first section of the civil rights act Congress has given its inter- 
pretation to these terms, or, at least, has stated some of the rights which, 
in its judgment, these terms include ; it has there declared that they in- 
clude the right ' to make and enforce contracts, to sue, he parties and 
give evidence, to inherit, purchase, lease, sell, hold, and convey real and 
personal property, and to full and equal benefit of all laws and proceed- 
ings for the security of person and property.' That act, it is true, was 
passed before the fourteenth amendment, but the amendment was adopted, 
as I have already said, to obviate objections to the act, or, speaking more 
accurately. I should say, to obviate objections to legislation of a similar 
character, extending the protectmn of the national government over the 
common rights of all citizens of the United States. Accordingly, after 
its ratification, Congress re-enacted the act, under the belief that what- 
ever doubts may have previously existed of its validity, they were re- 
moved Iw the amendment.* 

'"The terms, privileges and immunities are not newin the amendment : 
they w'cre in the Constitution before the amendment was adopted. They 
are found in the second section of the fourth article, which declares that 
'the citizens of each State shall be entitled to all privileges and immu- 
nities of citizens in the several States,' and they have been the subject of 
frequent consideration in judicial decisions. In Corfield vs. Coryell,t 
Mr. Justice Washington said he had ' no hesitation in confining these ex- 
pressions to those privileges and immunities which were, in their nature, 
fundamental ; which belong of right to citizens of all free governments, 
and which have at all times been enjoyed by the citizens of the several 

* May 31st, 1870; 16 Stat, at Large, 144. 
t 4 Washington, Cir. Ct., 380. 



150 

States which compose the Union, from the time of their becoming free, 
independent, and sovereign ;' and, in considering what these fundamen- 
tal privileges were, he said that perhaps it would be more tedious than 
difficult to enumerate them, but that they might be 'all comprehended 
under the following general heads : protection by the government ; the 
enjoyment of life and liberty, with the right to acquire and possess prop- 
erty of every kind, and to pursue and obtain happiness and safety, sub- 
ject, nevertheless, to such restraints as the government may justly pre- 
scribe for the general good of the whole.' This appears to me to be a 
sound construction of the clause in question. The privileges and immu- 
nities designated are those ?y/\;"(?/t 0/ J7"r/7ii &e?o«(7 to the citizens of all free 
(/oi'i'rnmeiits. Clearly among these must be placed the right to pursue a 
lawful eniplo^yment in a lawful manner, without other restraint than 
such as equally atfects all persons. In the discussions in Congress upon 
the passage of the civil rights act repeated reference was made to this 
language of Mr. Justice Washington. It was cited by Senator Trumbull 
with the observation that it enumerated the very rights belonging to a 
citizen of the United States set forth in the first section of the act, and 
with the statement that all persons born in the United States, being 
declaVed by the act citizens of the United States, would thenceforth be 
entitled to the rights of citizens, and that these were the great funda- 
mental rights set forth in the act; and that they were set tbrth 'as 
appertaining to every freeman.' 

" The privileges and immunities designated in the second section of 
the fourth article of the Constitution are, then, according to the decision 
cited, those which of right belong to the citizens of all free governments, 
and they can be enjoyed under that clause by the citizens of each State in 
the several States upon the same terms and conditions as they are enjoyed 
by the citizens of the latter States. No discrimination can be made by 
one State against the citizens of other States in their enjoyment, nor can 
any greater imposition be levied than such as is laid upon its own citi- 
zens. It is a clause which insures equality in the enjoyment of these 
rights between citizens of the several States whilst in the same State. 

" Nor is there anything in the opinion in the case of Paul vs. Virginia'^ 
which at all militates against these views, as is supposed by tiie major- 
ity of the court. 

" The whole purport of the decision [in that case] was, that citizens of 
one State do not carry with them into other States any special privileges 
or immunities conferred by the laws of their own States, of a corporate 
or other character. That decision has no pertinency to the questions in- 
volved in this case. The common privileges and immunities which of 
right belong to all citizens, stand on a very different footing. These the 
citizens of each State do carry with them into other States and are secured 
by the clause in question, in their enjoyment upon terms of equality with 

* 8 Wallace, lfi8. 



151 

citizens of the latter States. This eipialily in one i)ai'tieular was en- 
forced by this court in the recent case of ^\'a^(l ns. The State of Mary- 
land, rejK)rte(l in the l-Mli of Wallace. .\ stalute of that State required 
tile payment of a larger sum from anon-resident trader for a license to 
enal)]e liini to sell his merchandise in the State, tlian it did of a resident 
trader, and the court held that the statute in thus discriniinatinn- against 
the non-resident trader contravened the clause securiuLi, to tlie citizens of 
each State the privileges and immunities of citizens of the several States. 
The privilege of disposing of his property, which was an essential incident 
to his ownership, po.ssessed by the non-resident, was subjected by the 
statute of Maryland to a greater burdftu than was imposed upon a like 
privilege of her own citizens. . The privileges of the non-resident were in 
this i)articular abridged by that legislation. 

" What the clause in question did for tiie protection of the citizens of 
one State against hostile and discriminating legislation of other States, 
the fourteenth amendment does for the protection of every citizen of the 
United States against hostile and discriminating legislation against him 
in favor of others, whether they reside in tlie same or in different States. 
If, under the fourth article of the Constitution, equality of privileges 
and immunities is secured between citizens of different States, under the 
fourteenth amendment the same equality is secured between citizens of 
the United States. 

"It will not be pretended that under the fourth article of the Consti- 
tution any State could create a monopoly in any known trade or manu- 
factu^e in favor of her own citizens, or any portion of them, which would 
exclude an equal participation in the trade or manufacture monopolized 
by citizens of other States. She could not confer, for example, upon any 
of her citizens the sole right to manutacture shoes or boots or silk, or the 
sole right to sell those articles in the State, so as to exclude non-resident 
citizens from engaging in a similar manufacture or sale. The uon-resi- 
deut citizens could claim equality of privilege under the provisions of 
the fourth article with the citizens of the State exercising the monopoly 
as well as with others, and thus, as respects them, the monopoly would 
cease. If this were not so, it would be in the power of the State to ex- 
clude at any time the citizens of other States from participation in par- 
ticular branches of commerce or trade, and extend the exclusion from 
time to time so as effectually to prevent any traffic with them. 

" Now, what the clause in question does for the protection of citizens 
of one State against the creation of monopolies in favor of citizens of 
other States, the fourteenth amendment does for the protection of every 
citizen of the United States against the creation of any monopoly what- 
ever. The privileges and immunities of citizens of the United States, 
of every one of them, is secured against abridgment in any form by any 
State. The fourteenth amendment places them under the guardianship 
of the natioual authority. All monopolies in any known trade or manu- 
facture are an invasion of these privileges, ibr they encroach upon the 



152 

liberty of citizens to acquire property and i)ursiu" happiness, and were 
held void at common law in the great case ofMonopolies, decided during 
the reign of Queen Elizabeth. 

"A monopoly is defined ' to be an institution or allowance from the 
sovereign power of the State, by grant, commission, or otherwise, to any 
person or corporation, for the sole buying, selling, making, working, or 
using of anything whereby any person or persons, bodies politic or cor- 
porate, are sought to be restrained of any freedom or liberty they had be- 
fore, or hindered in their lawful trade.' All such grants relating to any 
known trade or manufacture have been held by all the judges of Eng- 
land, whenever they have come up for consideration, to be void at com- 
mon law, as destroj'ing the freedom of trade, discouraging labor and indus- 
try, restraining persons from getting an honest livelihood, and putting it 
in the power of the grantees to enhance the price of commodities. The 
deiinition embraces, it will be observed, not merely the sole privilege of 
buying and selling particular articles, or of engaging in their manufac- 
ture, but also the sole privilege of using anything by which others may 
be restrained of the freedom or liberty they previously had in any law- 
ful trade, or hindered in sucih trade. It thus covers in every particular 
the possession and use of suitable yar-ds, stables, and buildings for keep- 
ing and protecting cattle and other aninrals, and for their slaughter. 
Such establishments are essential to the free and successful prosecution 
by any Imtcher of the lawful trade of preparing animal food for market. 
The exclusive privilege of supplying such yards, buildings, and other 
conveniences for the iirosicution of this business in a large district of 
country, granted liy the act of Louisiana to seventeen persons, is as much 
a monopoly as though it had granted to the company the exclusive priv- 
ilege of buying and selling the animals themselves. It equally restrains 
the butcliers in the freedom and lilierty they previously bad and hinders 
them in their lawful trade. 

"The reasons given for the judgment in the case of Monopolies apply 
with equal force to the case at bar. In that case a patent had been 
granted to the plaintiff giving him the sole right to import playing-cards, 
and the entire traffic in them, and the sole right to make such cards 
within the realm. The defendant, in disregard of this patent, made and 
sold some gross of such cards and imported others, and was accordingly 
sued for infringing upon the exclusive privileges of the plaintiff. As to 
a portion of the cards made and sold within the realm, he pleaded that 
he was a haberdasher in London and a free citizen of that city, and as 
such had a right to make and sell them. The court held the plea good 
and the grant void, as against the common law and divers acts of Parlia- 
ment. ' All trades,' said the court, ' as well mechanical as others, which 
prevent idleness (the bane of the commonwealth) and exercise men and 
youth in labor for the maintenance of themselves and their families, and 
for the increase of their substance, to serve the Queen when occasion 
shall require, are profitable for the commonwealth, and therefore the 



153 

grant to the plaintiff to iiavc the sole inaking of them is cu/aitisf (he com- 
mon law and the benefit and tiherty of tlie anhjeet.' "••' Tlie case of Davenant 
and Hurdis was cited in sui)port of this ])osition. In that case a com- 
pany of merchant tailors in London, havioLi ixiwer by charter to make 
ordinances for the better rule and government of the company, so that 
they were consonant to law and reason, 7n;ide an ordiuiinee that any 
brother of the society who should have any cloth dressed by a cloth- 
worker, not being a brother of the society, should put one-half of his 
cloth to some brother of the same society who exercised the art of a cloth- 
worker, upon pain of forfeiting ten shillings, 'and it was adjudged that 
the ordinance, although it had the countenance of a charter, was against 
the common law, because if ims a(/ain»t the liherfi/ of the subject ; for every 
subject, by the law, has freedmn mid lilicrti/ to put his cloth to lie dremid by 
what cloth-worker he pleases, loid cannot be n.-^lrrdncd to ci rtain persons, for 
that in effect would be a monopoly, and, therefore, such ordinance, by color 
of a charter or any grant by charter to such effect, would be \ oid.' 

"Although the court, in its opinion, refers to the increase in prices and 
deterioration in quality of commodities which necessarily result from the 
grant of monopolies, the main ground of the decision was their interfer- 
ence with the liberty of the subject to pursue for his maintenance and 
that of his family any lawful trade or employment. This liberty is as- 
sumed to be the natural right of every Englishman. 

" The struggle of the Engli-sh people against monopolies forms one of the 
most interesting and instructive chapters in their history. It tinailj' ended 
in the passage of the statute of 21st James I., by which it was declared 
' that all monopolies and all commLssions, grants, licenses, charters, and 
letters-patent, to any person or persons, bodies politic or corporate, what- 
soever, of or for the sole buying, selling, making, working, or using of 
anything ' within the realm or the dominion of Wales, were altogether 
contrary to the laws of the realm and uttei'ly void, with the exception of 
patents for new inventions for a limited period, and for printing, then 
supposed to belong to the prerogative of the King, and for the prepara- 
tion and manufacture of certain articles and ordnance intended for the 
prosecution of war. 

"The common law of England, as is thus seen, condemned all monopolies 
in any known trade or manufacture, and declared void all grants of special 
privileges whereby others could be deprived of any liberty which they 
previously had, or be hindered in their hiAvful trade. The statute of 
James I., to which I have referred, only embodied the law as it had been 
previously declared by the courts of England, although frequenth' disre- 
garded by the sovereigns of that country. 

" The common law of England is the basis of the jurisprudence of the 
United States. It was brought to this country by the Colonists, together 
with the English statutes, and was established here so far as it was ap- 

* 1 Coke Eept., part XT., p. 86. 



154 

plieable to their condition. That law and the benefit of such of the 
English statutes as existed at the time of tlieir colonizAtion, and which 
they had by experience found to be applicable to their circumstances, 
were claimed by the Conj^ress of the United Colonies in 1774 as a part 
of their ' indubitable rights and liberties.'* Of the statutes, the benefit 
of which was thus claimed, the statute of James I. against monopolies 
was one of the most important. And when the colonies separated from 
the mother country, no privilege was more fully recognized or more com- 
pletely incorporated into the fundamental law of the country, than that 
every free .subject in the British Empire was entitled to pursue his hap- 
jjiness by following any of the known established trades and occupations 
of the country, subject only to such restraints as equally affected all others. 
The immortal document which proclaimed the independence of the coun- 
try declared as self-evident truths that the Creator had endowed all men 
'with certain inalienable rights, and that among these are life, liberty, and 
the pursuit of happiness ; and that to secure these rights governments are 
instituted among men.' 

"If it be said that the civil law aiul not the common law is the basis of 
the jurisprudence of Louisiana, I answer that tiie decree of Louis XVIth, 
in 1776, abolished all monopolies of trades and all special privileges of 
corporations, guilds, and trading companies, and authorized every person 
to exercise, without restraint, his art, trade, or jsrofession, and such has 
been the law of France and her colonies ever since, and that law pre- 
vailed in Louisiana at the time of her cession to the United States. 
Since then, notwithstanding the existence in that State of the civil law as 
the basis of her jurisprudence, freedom of pursuit has been always recog- 
nized as the common right of her citizens. Bat were this otherwise, the 
fourteenth amendment secures the like protection to all citizens in that 
State against any abridgment of tlieir coaimun rights, as in other States. 
That amendment was inteniled to give practical effect to the declaration 
of 177G of inalienable rights, rights which are the gift of the Creator, 
which the law does not confer, but only recognizes. If the trader in Lou- 
don could plead that he was a free citizen of that city against the en- 
forcement to his injury of monopolies, surely under the fourteenth 
amendment every citizen of the United States should be able to plead 
his citizenship of the Republic as a protection against any similar inva- 
sion of his privileges and immunities. 

"So fundamental has this privilege of every citizen to be free from dis- 
paraging and unequal enactments in the pursuit of the ordinary avoca-. 
tions of life been regarded, that few instances have arisen where the prin- 
ciple has been so far violated as to call for the interposition of the courts. 
But whenever this has occurred, with the exceptioii of the present cases 
from Louisiana, which are the most barefaced and flagrant of all, the 
enactment interfering with the privilege of the citizen has been pro- 

*Journals of Congress, Vol. 1, pp. 28-80. 



155 

nnuiifed illi'Siil and void. When a case iind(>r the same law under whieh 
llie present cases have arisen came before the Circuit Court oftlic I'niled 
States in the District of Louisiana, there was no lusitatiou on the part of 
tlie court iu(K-cIarin-- tlir law, in its cxchisiv «■ features, lo ))e an invasion 
of one »[' \]\v fiuulanuMital [)ri\ il-ges of (he eiti/en.-- 'l"lu' presidioij; jus- 
tice, in delivering the opinion of the court, observed dial it uiiL;lit be dilti- 
cult to enumerate or define what were the essential privile^es of a eitizin 
of tlu' L'nitcd States, which a State could Jiot by its laws invade, but that 
so tar as the question under consideration was concerned, it might be 
safely .said that ' it is one of the privileges of every American (titizen to 
adopt and follow such lawful industrial pursuit, not injurious to the 
community, as he may see tit, without unreasonable regulation or mo- 
lestation, and without being restricted by any of those unjust, oppressive, 
and otlious manopolies or exclusive privilege-; which base been con- 
demned by all free governments.' And again, " there is no more sacred 
right of citizenship than the right to pursue uiimolestetl a lawi'ul cmploy- 
nu'ut in a lawful manner. It is nothing nu)ro nor less than the sacred 
right of labor.'" 

Otliof cases were cited in support oi" the po.sition of the 
opinion. The Judge conchided us follows : 

" In all these cases there is a recognition of the equality of right among 
citizens in the pursuit of the ordinary avocations of life, and a declara- 
tion that all grants of exclusive privileges, in contravention of this 
equality, are against common right and void. 

" This equality of right, with exemption from all disparaging and partial 
enactments, in the lawful pursuits of life, throughout the whole country, 
is the distinguishing privilege of citizens of the United States. To them, 
everywhere, all pursuits, all professions, all avocations are open Avithout 
other restrictions than such as are imposed equally upon all othei-s of 
the same age, sex, and condition. The. State may prescribe such regula- 
tions for every pursuit and calling of life as will promote the public 
health, secure the good order and advance the general prosperity of 
society, but when once prescribed, the pursuit or calling must be free to 
be followed by every citizen who is within tlu- conditions designated, 
and will conform to the regulations. Tiiis is the fundamental idea upon 
which our institutions rest, and unless adhered to in the legislation of 
the country our government will be a republic only in name. The four- 
teenth amendment, in my judgment, makes it essential to the validity of 
the legislation of every State that this equality of right .should be re- 
spected. How widely this eiinality has been departed from : how en- 
tirely rejected and trampled upon by the act of Louisiana, I ha\e already 
shown. And it is to me a matter of profound regret that its validity is 

* Live vStock, &c., Association vs. The Crescent City, lic, Company, 1 
Abbott's U. S. Rep., p. 398. 



156 

recognized by a majority of this court, for by it the right of free labor, 
one of the most sacred and imprescriptible rights of man, is violated.* 
As stated by the Supreme Court of Connecticut in tlie case cited, grants 
of exclusive privileges, such as is made by the act iu question, are op- 
posed to the whole theory of free government, and it requires no aid from 
any bill of rights to render them void. That only is a free government, 
in the American sense of the term, under which the inalienable right of 
every citizen to pursue his happiness is unrestrained, except by just, 
equiil, and impartial laws."}" 



The Power of the State to Control the Compensation 
Receivable for the Use of Private Property, and for 
Services in connection with it. — -The Chicago Ware- 
house Case. 

It is a recognized principle under all governments that 
every one must hold, use, and eiijoj' his property subject 
to such restrictions as the legislative authority of the State 

*"The property which every man has in his own labor," says Adam 
Smith, "as it is the original foundation of all other property, so it is the 
most sacred and inviolable. The patrimony of the poor man lies in the 
strength and dexterity of his own hands ; and to hinder him from em- 
ploying this strength and dexterity in what manner he thinks proper, 
witliout injui-y to his neighboi-, is a plain violation of this most .'acred 
property. It is a nianilcst encroachment upon the just liberty both of 
the workman and of those who might be disposed to employ him. As it 
hinders the one from working at w hat lie thinks proper, so it hinders the 
others from eniploying whom they think proper." — (Smith's Wealth of 
Nations, b. 1, ch. 10, part 2.) 

In the edict of Louis 16th, in 1776, giving freedom to trades and pro- 
fessions, prepared by his minister, Turgot, he recites the contributions 
that had been made by the guilds and trade companies, and says : " It 
was the allurement of these fiscal advantages undoubtedly that prolonged 
the illusion and concealed the immense injury they did to industry and 
their infraction of natural right. This illusion had extended so far that 
some persons asserted that tlie right to work was a royal privilege which 
the king might sell, and that his subjects were bound to purchase from 
him. We hasten o correct this error and to repel the conclusion. God iu 
giving to man wants and desires rendering labor necessary for their satis- 
faction, conferred the right to lal)or njion all men, and this property is 
the first, most sacred and imprescriptible of all." . . . He, therefore, 
regards it " as the first duty of his justice, and the worthiest act of be- 
nevolence, to free his subjects from any restriction upon this inalienable 
right of humanity." 

t "Civil liberty, the great end of all human society and government, is 
that state in which each individual has the power to pursue his own hap- 
piness according to his own views of his interest, and the dictates of his 
conscience, unrestrained, except by equal, just, and impartial laws." — (1 
Sharsvvood's Blackstone, 127, note 8.) 



157 

may prcseribo for the good order, pcneo, honltli, and nioi-als 
of the community, and so as not to iiilciicro willi tlie 
equal use and enjoyment by otliers of their property. 
And every one must, also, hold his property' suliject to 
taxation tor the suiii)ort of government, ov to he ayjpro- 
priated \'oy publie [>ur[>oses, upon a rt'gular appraisement 
and payment of its vahie. l)Ut uidess tliere is some spceial 
privilege conferred by the government in connt'etion witli 
one's property or with its use, interlerenee with his con- 
trol over it for any other purpose has not genei'ally been 
considered in this country, of hUe years, a legitimate sub- 
ject of legislation. Formerly, in European governments, 
where, theoretically, all power was in the sovereign, or in 
legislative assemblies or councils sitting under his sanction, 
the case was ditferent. Numerous regulations, as to the 
use of property and the compensation receivalde for its 
use, were there prescribed by law. In England, also, this 
was a common thing ; and many acts of legislation have 
been adopted in this country from the fact that precedents 
for like legislation have existed there, without considering 
their propriet}' or validity under our ditlerent system. 

In the recent case of Munn & Scott against the State 
of lUinois, this subject was brought to the consideration 
and judgment of the Supreme Court of the United 
States, and the decision rendered has attracted unusual 
attention as indicating a departure fi-oiu what was pre- 
viously considered to l)e the settled rule in this c;)untry. 
Munn & Scott were wai'ehousemen in Cliicago, Illinois, 
engaged in the storage of grain. They had constructed 
their warehouse and elevator in 1862 with their own 
means, upon ground leased by them for that purpose; and 
from that time until the filing of an information against 
them by the State, they had transacted the business of re- 
ceiving and storing grain for hire. The rates of storage 
charged by them were annually established by arrange- 
ment with the owners of ditferent elevators in Chicago, 
and were published in the month of .Tanuary. In 1.S70 



158 

tlie State of Illinois adopted a new eonstitntion. and l)y it 
''all elevators or storehouses where grain, or other prop- 
erty, is stored for a compensation, whether the property 
stored he kept separate or not, are declared to be public 
warehouses." 

In April, 1871, the legislature of the State passed an 
act to regulate these warehouses, thus declared to be pub- 
lic, and the warehonsing and inspection of grain, and to 
give effect to this article of the constitution. By that act, 
public warehouses, as defined in the constitution, were di- 
vided into three classes, the first of which embraced all 
warehouses, elevators, or granaries located in cities having 
not less than one hundred thousand inhabitants, in which 
grain was stored in bulk, and the grain of different owners 
was mixed together, or stored in such manner that the 
identity of difi'erent lots or parcels could not be accurately 
preserved. To this class the warehouse of Munn & Scott 
belonged. The act prescribed the maximum of charges 
which the proprietor, lessee, or manager of the warehouse 
was allowed to make for storage and handling of grain, 
including the cost of receiving and dehvering it, for the 
first thirty days or any part thereof, and for each succeed- 
ing fifteen days or any part thereof; and it required him 
to procure from the circuit court of the county a license 
to transact business as a public warehouseman, and to give 
a bond to the people of the State in the penal sum of ten 
thousand dollars for the faithful performance of his duty 
as such warehouseman of the first class, and for his full 
and unreserved compliance with all laws of the State in 
relation thereto. The license was made revocable by the 
circuit court upon a summary proceeding for any violation 
of such laws. And a penalty was imposed upon every 
person transacting business as a public warehouseman of 
the first class without first procuring a license, or continu- 
ing in such business after his license had been revoked, of 
not less than one hundred or more than five hundred dol- 
lars for each day on which the business was thus carried 



159 

on. The court was nlso antliorizod to rci'nsc^ lor one vt^ir 
to renew tlie license, ov to gTant a now one to any jitTson 
whose license had l)een revoked. The maximum of 
cliaru'es pi'cserihed hy the act for tlie receipt and storage 
of grain was dift'erent from that wliich Munn & ^Scott had 
prc\'ionsly charged, and wliich had heen agreed to hy the 
owners of the grain, yiore extended periods of storage 
were required of them than they formeidy gaA'c for the 
same charges. What they formerly charged for the first 
twenty days of storage, the act allowed them to charge 
only lor the first thii'ty days of storage ; and what they 
formerly charged for each succeeding ten days after the 
first twenty, the act allowed them to charge only for each 
succeeding fifteen days after the first thirty. Munn & 
Scott, deeming that they had a right to use their own prop- 
erty in such manner as they desired, not inconsistent with 
the equal right of others to a like use, and denying the 
power of the legislature to fix prices for the use of their 
property and their services in coimection with it, refused 
to comply with the act hy taking out the license and giv- 
ing the hond required; hut continued to carry on the busi- 
ness and to charge for receiving and storing grain such 
prices as they had been accustomed to charge, and as had 
been agreed npon between them and the owners of the 
grain. For thus transacting their business without pro- 
curing a license as required by the act, they were prose- 
cuted and fined, and the judgment against them was 
affirmed l:)y the Supreme Court of the State. The case 
was then carried to the Supreme Court of the United 
States. 

The question thus presented for adjudication was whether 
it is within the conqjetency of a State to fix the compensa- 
tion which an individual may receive for the use of his 
own property in his private business and for his services in 
connection with it ? It was argued with great ability by 
distinguished counsel, Messrs. Goudy and Jewett, for 
Munn ifc Scott, and the Attornev-General of Illinois, for 



160 

the State. The Supreme Coiii't affirmed the judgment, 
two judges only, Field and Strong, disagreeing with it. 
Chief Justice Waite gave the opinion of the court; Judge 
Field filed a dissenting opinion. 

The Chief Justice, after stating generally that when 
one becomes a member of society he necessarily parts with 
some rights or privileges wliicli as an individual, not 
ati'ected by his relations to others, he might retain; that 
government acting for all, under what are termed its po- 
lice powers, regulates the conduct of its citizens toward 
each other, and the manner in which each shall use his 
property when such regulation becomes necessary for the 
public good, and that in their .exercise it has been custom- 
ary in England from time immemorial, and in this country 
from its first colonization, to regulate ferries, common car- 
riers, hackmen, bakers, millers, wharfingers, and innkee|)- 
ers, said as follows : 

"From this it is apparent that, down to the time of the adoption ofthe 
fourteenth amendment, it was not supposed that statutes regulating the 
use, or even the price of the use, of private property necessarily deprived 
an owner of his property without due process of law. Under some cir- 
cumstances they may, but not under all. The ameudment does not 
change the law in this particular ; it simpl}' prevents the States from 
doing that which will operate as such a deprivation. 

"This brings us to inquire as to the principles upon which this power 
of regulation rests, in order that we may determine what is within and 
what is without its operative effect. Looking, then, to the common law, 
from whence came the right, which the Constitution protects, we find that 
when private property is 'affected with a public interest, it ceases to be 
juris prlvati only.' This was said by Lord Chief Justice Hale more than 
two hundred years ago, in his treatise De Fortibus Maris, (1 Harg. Law 
Tracts, 78,) and has been accepted without objection as an essential ele- 
ment in the law of property ever since. Property does become clothed 
with a public interest when used in a manner to make it of public conse- 
quence, and affect the community at large. When, therefore, one de- 
votes his property to a use in which the public has an interest, he, in 
effect, grants to the public an interest in that use, and must submit to be 
controlled by the public for the common good, to the extent of the inter- 
est he has thus created. He may withdraw his grant by discontinuing 
the use ; but so long as he maintains the use he must submit to the con- 
trol."— (94 U. S., 125-6.) 



101 

The (uu'triiu' \\vvo annonueod as to propm-ty beiiiti' 
affected with a }ml)lie interest, and the statement of the 
circunistances under whieli property is thus ati:eeted, con- 
stitute the principle of the decision, the reason of the judg- 
ment rendered. 

Several cases were also cited hy the Chief .Justice in 
supposed support of his position. Judge Field, as stated 
above, tiled a dissenting opinion. In that he answered the 
position of the Chief Justice, and examined the authorities 
referred to l)y him, and in the view of many very able 
judges and lawyers overthrew the ]>osition and showed 
that the authorities sustain the very contrary of the doc- 
trine to uphold wliich they were invoked. Speaking for 
himself and his associate the Judge said as follows : 

" The declaration of the constitution [of Illinois] of 1870, that pri- 
vate buildings used for private purposes shall be deemed public institu- 
tions, does not make them so. The receipt and storage of grain in a build- 
ing erected by private means for that purpose does not constitute the 
building a public warehouse. There is no magic in the language, though 
used by a constitutional convention, which can change a private business 
into a public one, or alter the character of the building in which the 
business is transacted. A tailor's or a shoemaker's .shop would still re- 
tain its private character even though the assembled wisdom of the State 
should declare by organic act or legislative ordinance that such a place 
was a public workshop, and that the workmen were public tailors or pub- 
lic shoemakers. One might as well attempt to change the nature of col- 
ors by giving them a new designation. The defendants were no more 
public warehousemen, as justly observed by counsel, than the merchant 
who sells his merchandise to the public is a public merchant, or the 
blacksmith who shoes horses for the public is a public blacksmith ; and 
it was a strange notion that by calling them so they would be brought 
under legi.slative control. 

" The Supreme Court of the State— divided, it is true, by three to two of 
its members — has held that this legislation was a legitimate exercise of 
State authority over private business ; and the Supreme Court of the 
United States, two only of its members dissenting, has decided that there 
is nothing in the Constitutiou of the United States, or its recent amend- 
ments, which impugns its validity. It is, therefore, with diffidence I 
presume to question the soundness of the decision. 

" The validity of the legislation was, among other grounds, assailed in 
the State court as being in conflict with that provision of the State con- 
stitution which declares that no person shall be deprived of life, liberty, 
11 



1G2 

or property without due process of law, ami with that provision of the 
14th ameudment of the federal Constitution which imposes a similar re- 
striction upon the action of the State. The State court held in substance 
that the constitutional provision was not violated so long as the owner 
was not deprived of the title and possession of his property ; and that it 
did not deny to the legislature the power to make all needful rules and 
regulations respecting the use and enjoyment of the property, referring, 
in support of the position, to instances of its action in prescribing the in- 
terest on money, in establishing and regulating public ferries and public 
mills, and fixing the compensation in the shape of tolls, and in delegating 
power to municipal bodies to regulate the charges of hackmen and dray- 
men and the weight and price of bread. In this court the legislation was 
also assailed on the same ground, our jurisdiction arising upon the clause 
of the 14th amendment ordaining that no State shall deprive any person 
of life, liberty, or property without due process of law. But it. would 
seem from its opinion that the court holds that property loses something 
of its private character when employed in such a way as to be generally 
useful. The doctrine declared is that property ' becomes clothed with a 
public interest when used in a manner to make it of public consequence 
and atfect the community at large ;' and from such clothing the right of 
the legislature is deduced to control the use of the property and to de- 
termine the compensation which the owner may receive for it. "When 
Sir Matthew Hale, and the sages of the law in his day, spoke of property 
as affected by a public interest, and ceasing from that cause to be juris 
X)rivati solely, that is, ceasing to be held merely in private right, they re- 
ferred to property dedicated by the owner to public uses, or to property 
the use of Avhich was granted by the government, or in connection with 
which special privileges were conferred. Unless the propertj^ was thus 
dedicated, or some right bestowed by the government was held with the 
property, either by specific grant or by prescription of so long a time as 
to imply a grant originally, the property was not affected by any public 
interest so as to be taken out of the category of property held in private 
right. But it is not in any such sense that the terms ' clothing property 
with a public interest ' are used in this case. From the nature of the 
business under consideration — the storage of grain — which, in any sense 
in Avhich the word can be used, is a private business, in which the public 
are interested only as they are interested in the storage of otlier products 
of the soil, or in articles of manufacture, it is clear that the court intended 
to declare that whenever one devotes his property to a business which is 
useful to the public— 'affects the community at large ' — the legislature 
can regulate the compensation which the owner maj^ receive for its use 
and for his own services in connection with it. ' When, therefore,' says the 
court, 'one devotes his property to a use in which the public has an in- 
terest, he, in effect, grants to the public an interest in that use, and must 
submit to be controlled by the public for the common good to the extent 
of the interest he has thus created. He may withdraw his grant by dis- 



1G8 

confinuiiiji, tlio use. l)nt so long as ho iiuiiiitains tlio use ho must submit 
to the control.' The building used by the defondants was lor the storage 
of grain; in such storage, says the court, the puldic has an interest; 
thorotbre tlu; dofendants, by devoting the building to that storage, have 
granted to tlio public an interest in that use, and must submit to have 
their compen,sation regulated by the legislature. 

"If this be sound hnv, if there be no protection either in the jjrinciples 
upon which our republican government is founded, or in the prohibitions 
of the Constitution against such invasion of private rights, all property 
and all business in the State are held at the mercy of a majority of its 
legislature. The public has no greater interest in the use of buildings 
for the storage of grain than it has in the use of buildings for the resi- 
dences of families, nor, indeed, anything like so great an interest ; and, 
according to the doctrine announced, the legislature may fix the rent of 
all tenements used for residences, without reference to the co.st of their 
erection. If tlie owner does not like the rates prescribed, he may cease 
renting his houses. He has granted to the public, says the court, an in- 
terest in the use of the buildings, and ' he may withdraw his grant by 
discontinuing the use ; but so long as he maintains the use he must sub- 
mit to the control.' The public is interested in the manufacture of cot- 
ton, woolen, and silken fabrics, in the construction of machinery, in the 
printing ami publication of books and periodicals, and in the making of 
utensils of every variety, useful and ornamental ; indeed, there is hardly 
an enterprise or business engaging the attention and labor of any consid- 
erable portion of the community in which the public has not an interest 
in the sense in which that term is used by the court in its opinion ; and 
the doctrine which allows the legislature to interfere with and regulate 
the charges which the owners of property thus employed shall make for 
its use, that is, the rates at which all these different kinds of business 
shall be carried on, has never before been asserted, so tar as I am aware, 
by any judicial tribunal in the United States. 

'■ The doctrine of the State court, that no one is deprived of his prop- 
erty, within the meaning of the constitutional inhibition, so long as he 
retains its title and po.sse.ssion, and the doctrine of this court, that when- 
ever one's property is used in such a manner as to atfect the community 
at large, it becomes by that fact clothed with a public interest and ceases 
to he. juris privati only, api)ear to me to destroy for all useful purposes the 
efiicacj^ of the constitutional guaranty. All that is beneficial in property 
arises from its use and the fruits of that use ; and whatever deprives a 
person of them deprives him of all that is desirable or valuable in the 
title and possession. If the constitutional guaranty extends no further 
than to prevent a deprivation of title and possession, and allows a de- 
privation of use and the fruits of that use, it does not merit the encomi- 
ums it has received. Unless I have misread the history of the provision 
now incorporated into all our State constitutions, and by the fifth and 
fourteenth amendments into our federal Constitution, and have misun- 



1G4 

derstood the interpretation it has received, it is not thus limited in its 
scope and thus impotent for good. It has a much more extended opera- 
tion than either court, State or federal, has given to it. The provision, it 
is to be observed, places property under the same protection as life and 
liberty. Except by due pi-ocess of law no State can deprive any person 
of either. The provision has been supposed to secure to every individual 
the essential conditions for the pursuit of happiness, and for that reason 
hiis not been heretofore, and should never be, construed in any narrow or 
restricted sense. 

"No State 'shall deprive any person of life, liberty, or property with- 
out due process of law,' says the 14th amendment to the Constitution. 
By the term ' life,' as here used, something more is meant than mere ani- 
mal existence. The inhibition against its deprivation extends to all those 
limbs and faculties by which life is enjoyed. The i)rovision equally pro- 
hibits the mutilation of the body by the amputation of an arm or leg, or 
the putting out of an eye, or the destruction of any other organ of the 
body through which the soul communicates with the outer world. The 
deprivation, not only of life, but of whatever God has given to every one 
with life, for its growth and enjoyment, is prohibited by the provision in 
question, if its efficacy be not frittered away by judicial decision. 

"By the term 'liberty,' as used in the provision, something more is 
meant than mere freedom from physical restraint or the bounds of a 
prison. It means freedom to go where one may choose, and to act in such 
manner, not inconsistent with the equal rights of others, as his judgment 
may dictate for the promotion of his happiness — that is, to pursue such 
callings and avocations as may be most suitable to develop his capacities 
and give to them their highest enjoyment. 

" The same liberal construction which is required for the protection of 
life and liberty, in all particulars in which life and liberty are of any 
value, should be applied to the protection of private jiroperty. If the 
legislature of a State, under pretence of providing for the public good, 
or for any other reason, can determine, against the consent of the owner, 
the uses to which private property shall be devoted, or the prices which 
the owner shall receive for its uses, it can deprive him of the property as 
completely as by a special act for its confiscation or destruction. If, for 
instance, the owner is prohibited from using his building for the purposes 
for which it was designed, it is of little consequence that he is permitted 
to retain the title and ijossession. Or if he is compelled to take as com- 
pensation for its use less than the expenses to which he is subjected by 
its ownership, he is for all practical purposes deprived of the property, as 
effectually as if the legislature had ordered his forcible dispossession. If 
it be admitted that the legislature has any control over the compen- 
sation, the extent of that compensation becomes a mere matter of legis- 
lative discretion. The amount fixed will operate as a partial destruc- 
tion of the value of the property, if it fall below the amount which the 
owner would obtain by contract, and, practically, as a complete destrue- 



165 

lion, il" it ))(■ less than the cost ot' ret:uiiiiig its possession. There is, in- 
deed, no protection of any valne under the constitutional provision which 



does not c 


xtend 


to 


the 


■ use 


and 


income 


of t 


he 


l)roi)erty as well as to its 


title and ) 


lossessi 


on. 


















'•Tliis (•! 


>urt Iki 


IS ll 


ere 


■tolu 


re he 


Id 


in ni; 


my it 


1st; 


inces tiiat a constitutional 


provision 


intend. 


■d 1 


■or 


the 


pn)t( 


•eti 


on ol' 


ri-hts. 


)i' juivate property should 


belil.erall 


y const 


rn( 


■d. 


It 1 


lias s( 


) h 


.•hi il 


1 the 


nil 


melons cases where it has 


))een calle. 


d upon 


1 to 


iii 


ive ( 


dtect 


to 


the 


prov 


isi( 


)n ])i'ohibitin<j; the States 


IVo.u lejiis 


lation 


iin] 


)airing 


the obli 


ji'ation of 


COl 


iitracts; tin; provision be- 



ing cionstrued not only to secure the contract itself from direct attack, 
but all the essential incidents which give it value and enable its owner 
to enlbrce it. Thus, in Bronson vs. Kinzie, reported in the 1st of How- 
ard, it was Iield that an act of the Legislature of Illinois giving to a mort- 
gagor twtdve months williin which to redeem his mortgaged property 
from a judicial sale, and prohibiting its sale for less than two-thirds of its 
appraised value, was void as applied to mortgages executed prior to its 
passage. It was contended, in support of the act, that it affected only 
the remedy of the mortgagee and did not impair the contract; but the 
court replied that there was no substantial difference between a retro- 
spective law declaring a particular contract to be abrogated and void and 
one which took away all remedy to enforce it, or encumbered the remedy 
with conditions that rendered it useless or impracticable to pursue it. 
And, referring to the constitutional provision, the court said, speaking 
through Mr. Chief Justice Taney, that ' it would be unjust to the mem- 
ory of the distinguished men who framed it to suppose that it was de- 
signed to protect a mere barren and abstract right, without any practical 
operation upon the business of life. It was undoubtedly adopted as a 
part of the Constitution for a great and useful purpose. It was to main- 
tain the integrity of contracts and to secure their faithful execution 
througliout this Union bj- placing them under the protection of the Con- 
stitution of the United States. And it would but ill become this court, 
under any circumstances, to depart from the plain meaning of the words 
used and to sanction a distinction between the right and the remedy 
which would render this provision illusive and nugatory, mere words of 
form, affording no protection'and producing no practical result.' 

" And in Pumpellj^ vs. Green Bay Company, reported in the 13th of 
Wallace, the language of the court is equally emphatic. That case arose 
ill Wisconsin, the constitution of which declares, like the constitutions of 
nearly all the States, that private property shall not be taken for public 
use without just compensation; and this court held that the flooding of 
one's land by a dam constructed across a river under a law of the State 
was a taking within the jirohibition, and required compensation to be 
made to the owner of the land thus flooded. The court, speaking 
through Mr. Justice Miller, said : 'It would be a very curious and un- 
satisfactory result, if, in construing a provision of constitutional law, 
always understood to have been adopted for protection and security to 



166 

the rights of the individual lus against the government, and which has 
received the commendation of jurists, statesmen, and commentators, as 
placing the just principles of the common law on that subject be^'ond the 
power of ordinary legislation to change or control them, it shall be held 
that if the government refrains from the absolute conversion of real prop- 
erty to the uses of the public it can destroy its value entirely, can inflict 
irreparable and permanent injury to any extent, can, in effect, sul)ject it 
to total destruction, without making any compensation, because, in the 
narrowest sense of the word, it is not taken for the public use. Such a 
construction would pervert the constitutional provision into a restriction 
on the rights of the citizen, as those rights-stood at the common law, in- 
stead of the government, and make it an authority for invasion of private 
right under the pretext of the public good, which had no warrant in the 
laws or practices of our ancestors.' The views expressed in these citations, 
applied to this case, would render the constitutional provision invoked 
by the defendants effectual to protect them in the uses, income, and rev- 
enues of their property as well as in its title and possession. The con- 
struction actually given by the Stale court and by this court makes the 
provision, in the language of Taney, a protection to ' a mere barren and 
abstract right, without any practical operation upon the business of life,' 
and renders it ' illusive and nugatory, mere words of form, affording no 
protection and producing no practical result.' 

" The power of the State over the property of the citizen under the 
constitutional guaranty is well defined. The State may take his prop- 
erty for public uses upon just compensation being made therefor. It 
may take a portion of his propeity by way of taxation for the support of 
the government. It may control the use and possession of his property 
so far as may be necessary for the protection of the rights of others, 
and to secure to them the equal use and enjoyment of their property. 
The doctrine that each one must so use his own as not to injure his 
neighbor — sic utere tuo ut alienum non Isedas — is the rule by which every 
member of society must possess and enjoy his property ; and all legisla- 
tion essential to secure this common and equal enjoyment is a legitimate 
exercise of State authority. Except in cases where property may be de- 
stroyed to arrest a conflagration or the ravages of pestilence, or be taken 
under the pressure of an immediate and overwhelming necessity to pre- 
vent a public calamity, the power of the State over the property of the 
citizen does not extend beyond such limits. 

" It is true that the legislation which secures to all protection in their 
rights and the equal use and enjoyment of their property embraces an al- 
most infinite variety of subjects. Whatever aftects the peace, good order, 
morals, and health of the community comes within its scope, and every 
one must use and enjoy his property subject to the restrictions which 
sirch legislation imposes. What is termed the police power of the State, 
which from the language often used respecting it one would suppose to 
be an undefined and irresponsible element in government, can only in- 



i(;7 

tertL-re witli tlie coiuUict of iiuUviduals in thi'ir iiitercour.se with eaeh 
other, and in the use of tlieir property', so far as may he ret^uired to se- 
cure these objects. The cjnipensatiou wiiich the owners of property, 
not havinj^ any special rights or privileges from the government in con- 
nection with it, may demand for its use, or for their own services in 
union with il. forms no clement of consideration in i)rescribing regula- 
tions for tliat purpose. If one construct a buihliug in a city, the State, 
or the municipality exercising a delegated power from the State, may 
require its walls to be of suiiicieut thickness for the uses intended ; it 
may forbid tke employment of inflammable materials in its construc- 
tion, so as not to endanger the safety of his neighbors ; if designed as a 
theatre, church, or public hall, it may prescribe ample means of egress so 
as to atlbrd facility for escape in case of accident ; it may forbid the 
storage in it of powder, nitro-glyceriae, or other explosive material ; it 
may require its occupants daily to remove decayed vegetable and animal 
matter which would otherwise accumulate and engender disease; it may 
exclude from it all occuy.itions and business calculated to disturb the 
neighborhood or infect the air. Indeed, there is no end of regulations 
with respect to the use of property which may not be legitimately pre- 
scribed, having for their object the peace, good order, safety, and health of 
the community, thus securing to all the equal enjoyment of their property ; 
but in establishing these regulations it is evident that compensation to the 
owner for the use of his property, or for his services in union with it, is not 
a matter of any imijortauce ; whether it be one sum or another does not af- 
fect the regulation, either in respect to its utility or mode of enforcement. 
One may go in like manner through the whole round of regulations auth- 
orized by legislation. State or municipal, under what is termed the police 
power, and in no instance will he tind that the compensation of the owner 
for the use of his property has any influence in establishing them. It is 
only where some right or i^rivilege is conferred by the government or 
municipality upon the owner which he can use in connection with his 
property, or by means of which the use of his property is rendered more 
valuable to him, or he thereby enjo^'s an advantage over others, that 
the compensation to be received by him becomes a legitimate matter of 
regulation. Submission to the regulation of compensation in such cases 
is an implied condition of the grant, and the State in exercising its power 
of prescribing the compensation oul}^ determines the conditions upon 
which its concession shall be enjoyed. When the pri\ ilege euds the 
power of regulation ceases. 

" Jurists and writers on public law ^flnd authority for the exercise of 
this police power of the State and the numerous regulations which it 
prescribes in the doctrine already stated, that every one must use and en- 
joy his property consistently with the rights of others and the equal use 
and enjoyment by them of their property. ' The police power of the 
State,' says the Supreme Court of Vermont, ' extends to the protection of 
the lives, limbs, health, comfort, and quiet of all persons, and the pi'otec- 



168 

tion of all property in the State. According to the maxim, sic uiere tuo 
ut alienum non Isedas, which being of universal application, it must, of 
course, be within the range of legislative action to define the mode md 
manner in which every one may so use his own as not to injure others.'^ ' We 
think it a settled principle growing out of the nature of well-ordered 
civil society,' says the Supreme Conrt of Massachusetts, ' that every holder 
of property, however absolute and unqualified may be his title, holds it 
under the implied liability that his use of it shall not be injurious to the 
equal enjoyment of others having an equal right to the enjoyment of their prop- 
erty, nor injurious to the rights of the commicnify.'f In his commentaries, 
after speaking of the protection afforded by the Constitution to private 
property. Chancellor Kent says : ' But though property be thus protected, 
it is still to be understood that the lawgiver has the right to prescribe the 
mode and manner of using it, .so far as may he necessary to prevent the abuse 
of the right, to the injury or annoyance of others, or of the public. The gov- 
ernment may, by general regulations, interdict such uses of property as 
would create nuisances and become dangerous to the lives, or health, or 
peace, or comfort of the citizens. Unwholesome trades, slaughter-houses, 
operations offensive to the senses, the deposit of powder, the application 
of steam-power to propel cars, the building with combustible materials, 
and the burial of the dead may all be interdicted by law, in the midst of 
dense masses of populati(m, on the general and rational principle that every 
person ought so to use his property as not to injure his neighbors, and that pri- 
vate interest must he subservient to the general interests of the community.'^. 

" The italics in these citations are mine. The citations show what I 
have already stated to be tlie case, that the regulations which the State, 
in the exercise of its police power, authorizes with respect to the use of 
property are entirely independent of any question of compensation for 
such use or for the services of the owner in connection with it. 

" Tliere is nothing in the character of the business of the defendants as 
warehousemen which called for the interference complained of in this 
case. Their buildings are not nuisances ; their occupation of receiving 
and storing grain infringes upon no rights of others, disturbs no neigh- 
borhood, infects not the air, and in no respect prevents others from using 
and enjoying their property as to them may seem best. The legislation 
in question is nothing less than a bold assertion of absolute power by the 
State to control at its discretion the property and business of the citizen, 
and fix the compensation he shall receive. The will of the legislature is 
made the condition upon which the owner shall receive the fruits of his 
property and the just reward of his labor, industry, and enterprise. 
' That government,' says Story, ' can scarcely be deemed to be free where 
the rights of property are left solely dependent upon the will of a legisla- 

* Thorpe vs. Rutland & Burlington R. R. Co., 27 Vt., 149. 
f Commonwealth vs. Alger, 7 Cushing, 84. 
j 2 Kent, 340. 



169 

tive body without any rostraint. Tlie I'liiidanuMital maxims of a free 
sinvcrnniont seem to roqnire that the riglits* of ])cisoiial lihoity and pri- 
vate pro)iertj- should be held sacred.'* The decision of the court in this 
case nives unrestrained license to legislative will. 

"The .several instances mentioned by counsel in the arunnuMit and by 
the court in its opinion, in wliich leuislation has fixed liie compen.sation 
wiiich ])arlies may receive lor tlie usr of their projierly and services, do 
not militate a.^ainstthe views I iiave exiircsscd ol'tlu' jiowrr of the State 
over the property of the citizen. Tlu'V were mostly cases of pul)lic fer- 
ries, bridges, and turnpikes, of whartingers, hackmen, and draymen, and 
of interest on money. In all these cases, except that of interest on money, 
which I shall presently notice, there was some special privilege granted 
by the State or municipality; and no one, I suppose, has ever conteiided 
that the State had not aright to prescril)e the conditions upon which 
such privilege should 1)e enjoyed. Tlie State in sncli cases exercises no 
greater right than an indi\ idual may exercise o\ er the use of his own 
]>roperty when leased or loaned to others. The conditions upon which 
the privilege shall be enjoyed being stated or implied in the legislation 
authorizing its grant, no right is, of counse, impaired by their enforce- 
ment. The recipient of the privilege in effect stipulates to comply with 
the conditions. It matters not how limited the privilege conferred, its 
acceptance Implies an assent to the regulation of its use and the compen- 
sation for it. The privilege which the hackman and drayman have to 
the use of stands on the public streets, not allowed to the ordinary coach- 
man or laborer with teams, constitutes a sufficient warrant for the regula- 
tion of their fares. In the case of the warehousemen of Chicago, no right 
or privilege is conferred by the government upon them, and hence no as- 
sent of theirs can be alleged to justify any interference with their charges 
for the use of their property. 

" The quotations from the writings of Sir Matthew Hale, so far from 
suppoiting the positions of the court, do not recognize the interference 
of the government even to the extent which I have admitted to be legit- 
imate. They state merely that the franchise of a public ferry belongs to 
the King, and cannot be used l)y the subject except by license from him, 
or prescription time out of mind ; and that wlien the subject has a pub- 
lic wharf by license from the King, or from having dedicated his private 
wharf to the public, as in the case of a street opened by him through his 
own land, he must allow the use of the wharf for reasonable and mod- 
erate charges. Thus, in the first quotation, which is taken from his 
treatise ' De Jure Maris,' Hale says that the King has a 'right of fran- 
chise or privilege, that no man may set up a common ferry for all pas- 
sengers without a prescription time out of miiul or a charter from the 
King. He may make a ferry for his own use or the use of his family, 
but not for the common use of all the King's subjects passing that way ; 

* Wilkeson vs. Leland, 2 Peters, 657. 



170 

because it doth in conseqnent tend to a common charge, and is become a 
thing of public interest and use, and every man for his i)assage jiays a 
toll, which is a common charge, and every ferry ought to be under a pub- 
lic regulation, viz., that it give attendance at due times, keep a boat in 
due order, and take bat reasonable toll ; for if he fail in these he is fine- 
able.' Of coarse one who obtains a license from the King to establish a 
public ferry at which ' every man for his pa.ssage pays a toll,' must take 
it on condition that he charge only reasonable toll, and indeed subject to 
such regulations as the King may prescribe. 

"In the second quotation, which is taken from his treatise' De Porti- 
bus Maris,' Hale says: 'A man. for his own private advantage, may, in a 
port or town, set up a wharf or crane, and may take what rates he and 
his customers can agree for cranage, wharfage, ho usellage, pesage ; ior 
he doth no more than is lawful for any man to do, viz., makes the 
most of his own. ... If the King or subject have a public wharf, 
unto wliicli all persons that come to that port must come and unlade or 
lade their goods as for the purpose, because they are the wharves only 
licensed by the King, . . . or because there is no other wharf in that 
port, as it may fall oat where a port is newly erected, in that case there 
cannot be taken arbitrary and excessive duties for cranage, wharfage, 
pesage, &c., neither can they be enhanced to an immoderate rate, but the 
duties must be reasonable and moderate, though settled liy the King's 
license or charter. For now the wharf and crane and other conveniences 
are affected with a public interest, and they cease to he juris privati only ; 
as if a man set out a street in new building on his own laud, it is now no 
longer bare private interest, bat is affected by the public interest.' The 
purport of which is that if one have a public wharf, by license from the 
government or his own dedication, he must exact only reasonable com- 
pensation for its use. By its dedication to public u.se a wharf is as much 
brought under the common law rule of subjection to reasonable charges 
as it would be if originally established or licensed by the Crown. All 
property dedicated to public use by an individual owner, as in the case 
of land for a park or .street, falls at once, by force of the dedication, un- 
der the law governing property appropriated by the government lor sim- 
ilar purpo.ses. 

" I do not doubt the justice of ths encomiums passed upon Sir Matthew 
Hale as a learned jurist of his day, but I am unable to perceive the per- 
tinency of his observations upon public ferries and public wharves, found 
in his treatises on ' The Rights of the Sea ' and on ' The Ports of the Sea,' 
to the questions presented by the warehousing law of Illinois undertak- 
ing to regulate the compensation receivable b^^ the owners of private 
property, when that property is used for prirate purposes. 

" The principal authority cited in support of the ruling of the court is 
that of Alnutt vs. Inglis, decided by the King's Bench, and reported in 
the 12th of E:ist. But that case, so far from sustaining the ruling, estab- 
lishes, in my judgment, the doctrine that every one has a right to charge 



171 

for his property, or for its use, whatever he pleases, unh^ss he enjoys in 
eoniieetiou with it some riji;ht or priviU^ge from the government not ac- 
(">)rded to others; and even then it only decides wliat is ahovc stated in 
the quotations from Sir Matthew Hale, that he must suhmit, so long aa 
he retains the right or privilege, to reasonahle rates. In that case the 
London Dock t'ouipany, under certain acts ol' rarliament, possessed the 
exclusive right of ri'ceiviug imported goods into their warehouses hefore 
Ihe dulics were paid ; and the question was whether the conipany was 
hound to receive them for a reasonal)le reward, or whether it could arbi- 
trarily lix its compensation. In deciding the case, the Chief Justice, 
Lord Ellenhorough, .said : ' There is no doubt that the general principle is 
favored both in law and justice, that every man may fi.x what price he 
pleases upon his own property, or the use of it ; but il', for a particular 
purpose, the public have a right to resort to his premises and make use 
of them, and he have a monopoly in them for that purpose, if he will 
take the benelit of that monopoly, he must, as an ecjuivalent, perform 
the duty attached to it on reasonalde terms.' And coming to the con- 
elusion that the company's warehouses were invested with ' the monopoly 
of a public privilege,' he held that by law the company must contine it- 
self to take rea,sonable rates ; and added that if the Crown should there- 
after think it advisable to extend the privilege more generally to other 
persons and places, so that the public would not be restrained from exer- 
cising a choice of warehouses for the purpose, the company might be en- 
franchised from the restriction which attached to a monopoly; but so 
long as its warehouses were the only places which could be resorted to 
for that purpose, the company was bound to let the trade have the use of 
them for a reasonable hire and reward. The other judges of the court 
placed their concurrence in the decision upon the ground tliat the com- 
l)any possessed a legal monopoly of the business, having the only ware- 
houses where goods imported could be lawfully received without i^revious 
payment of the duties. P'rom this case it appears that it is only where 
some privilege in the bestowal of the government is enjoyed in connec- 
tion with the property, that it is affected with a public interest in any 
proper sense of the term. It is the public privilege conferred with the 
use of the property which creates the public interest in it. 

'■ In the case decided by the Supreme Court of Alabama, where a power 
granted by the city of Mobile to license bakers and to regulate the weight 
and price of bread, was sustained so far as regulating the weight of bread 
was concerned, no question was made as to the right to regulate the price.* 
There is no doubt of the competency of the State to prescribe the weight 
of a loaf of bread, as it may declare what weight shall constitute a pound 
or a ton. But I deny the power of any legislature under our government 
to lix the price which one shall receive for his property of any kind. If 
the power can be exercised as to one article it may as to all articles, and 

* 3 Ala., 137. 



172 

the prices ol' everything iVoni a calico gown to a city mansion may be the 
subject of legislative direction. 

•'Other instances of a similar character may no doubt be cited of at- 
tempted legislative interference with the rights of property. The act of 
Congress of 1820, mentioned by the court, is one of them. There Con- 
gress undertook to confer upon the city of Washington povs^er to regulate 
the rates of wharfage at private wharves, and the fees for sweeping chim- 
neys. Until some authoritative adjudication is had upon these and sim- 
ilar provisions, I must adhere, notwithstanding the legislation, to my 
opinion that those who own property liave the right to fix the compensa- 
tion at which they will allow its use, and thai those who control services 
have a right to fix the compensation at which they will be rendered. The 
chimney-sweeps may, I think, safely claim all the compensation which 
they can obtain by bargain for their work. In the absence of any con- 
tract for property or services the law allows only a reasonable price or 
compensation, but what is a reasonable price in any case will depend upon 
a variety of considerations, and is not a matter for legislative determina- 
tion. 

" The practice of regulating by legislation the interest receivable for 
the use of money, when considered with reference to its origin, is only the 
assertion of a right of the government to control the extent to which a 
privilege granted by it may be exercised and enjoyed. By the ancient 
common law it was unlawful to take any money for the nse of money ; 
all who did so were called usurers, a term of great reproach, and were ex- 
posed to the censure of the Church. And if, after the death of a person, 
it was discovered that he had been a usurer whilst living, his chattels 
were forfeited to the King, and his lands escheated to the lord of the fee. 
No action could be maintained on any promise to pay for the use of money, 
because of tlie unlawfulness of the contract. Whilst the common law 
thus condemned all usury, Parliament interfered and made it lawful to 
take a limited amount of interest. It was not upon the theory that the 
legislature could arbitrarily fix the compensation which one could receive 
for the use of property, which by the general law was the subject of hire 
for compensation, that Parliament acted, but in order to confer a privi- 
lege which the common law denied. The reasons which led to this legis- 
lation originally have long since ceased to exist, and if the legislation is 
still persisted in, it is because a long acquiescence in the exercise of a 
power, especially when it was rightfully assumed in the first instance, is 
generally received assufiicient evidence of its continued lawfulness.* 

■•10 Bacon's Abridgment, 264. The stntute of 13 Elizabeth, C. 8, 
which allows ten per cent, interest, recites " th it all usury being forbidden 
by the law of God is sin and detestable;" anil the statute of 21 James 
tiie First, reducing the rate to eight per cent., provided that nothing in 
the law should be " construed to allow the practice of usury in point of 
religion or conscience," a clause introduced, it is said, to satisfy the bish- 
opsj who would not vote for the bill without it. 



17?. 

"There was also recognized in England by tlie ancient conunon law 
certaiu privileges as belonging to the lord of the manor, which grew out 
of the state of the country, the condition of the people, and the relation 
existing l)et\veen him and his tenants under the feudal system. Among 
these was the right of the' lord to compel all the tenants within his 
manor to grind their corn at his mill. No one, thcrelbre, could set up a 
mill except by his license or by the license of the Crown, unless he 
claimed the right by prescri»ptiou, which presupposed a grant from the 
lord or Crown, and, of course, with such license went the right to regu- 
late the tolls to be received. Hence originated the doctrine which at 
onetime obtained generally in this country, that there could be no mill 
to grind corn for the public without a grant or license from the public 
authorities. It is still, I believe, asserted in some States. This doctrine 
being recognized, all the rest followed. The right to control the toll ac- 
companied the right to control the establi.shment of the mill. 

" It requires no comment to point out the radical differences between 
the ca.ses of public mills and interest on money and that of the warehouses 
in Chicago. No prerogative or privilege of the Crown to establish ware- 
liouses was ever asserted at the common law. The business of a ware- 
houseman was at common law a private bnsines.s, and is so in its nature. 
It has no special ijrivileges connected with it, nor did the law ever extend 
to it any greater protection than it extended to all other private business. 
No reason can be assigned to justify legislation interfering ^yith the legit- 
imate profits of that business that would not ecjually justify an inter- 
meddling with the bu.siness of every man in the community, so soon at 
least as his business became generally useful."* 



The Relations between the Federal Government and 
THE State Governments. — The Rights of the States. 
— The Virginia Jury Cases and the Election Cases 
FROM Ohio and Maryland. 

The governmetit of the Union is a erovernment of dele- 
gated powers. It can exercise only those powers and such 
as ma J be necessary and proper to give them full execu- 
tion. All other powers whicli are not thus delegated, and 
which are not prohibited by the Constitution, are reserved 
to the States or to the people. This is not a matter of argu- 



* See a learned note by Prof. Denslow upon the opinion of the court in 
the 16th vol., new series, of the American Law Register, p. 539-545. 



174 

nient and inference. It is the express langiiag'e of the 
tenth amendment, wliieh is as foUows : 

" The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or to the peoi^le." 

All that there is of" State rights," properly understood, 
is contained in this amendment. When reference is made 
to the authority and jurisdiction of States, and not merely 
to their proprietary interests, "' rights " and "■ powers" are 
sj^nonymous terms. The rights of tlie States, or " State 
rights," as the phrase is, are nothing more than the powers 
of the States reserv^ed to them under the Constitution. 

The government of the Union is invested with great 
powers, such as are essential to present the whole country 
as one nation in its intercourse with other countries, 
whether in peace or war, and such as are essential to the 
preservation of j^eace at home, and to facilitate intercourse 
and commerce among its people. In all its po\^'~ers that 
government is supreme, and to their enforcement no im- 
pediment can be lawfully interposed. Is'o true advocate 
for the maintenance of the rights of the States can ever 
claim otherwise. The Constitution itself on its face de- 
clares that it, and laws made in pursuance thereof, " shall 
be the supreme law of the land." 

But the same supreme authority over matters delegated 
to it, which the government of the Union possesses, the 
States retain over matters not thus delegated. Over such 
matters the powers of the States are those of their orig- 
inal sovereignty. It vvas not for local matters, such as 
the management of the police of towns and cities, the 
opening of highways, the care of the sick, the education 
of children, the establishment of universities, the regula- 
tion, transfer, and descent of property, and the direction of 
the local interests of a community, that the government of 
the Union was created. It was creg,ted for the control of 
matters of common interest to all the States, which they 
could not in their separate capacities adequately manage. 



175 

Till' dual i^'oN'oninuMit oi' our iatluTs -that o!' llio 2:en- 
eral li-oViM-mnout aud tliat of the States — actiniz; to^'etlier 
solved the prohleui ol' a iVee ii'overinnent over a vast eouu- 
tr\\ end)faeiui2: dill'ereut eliinates, I'liniishino; dili'crent 
produets, aud haviiiu', iu ditlerent Bcctious, j»i'oj>le oi' dif- 
fereut hahits aud pursuits. Eaeh State can have its local 
policy to suit its people, without inteii'eriut;- with a ditt'eueut 
policy })ursued hy aiu>thei' State. Take, tor exauiple, the 
three States of Maine, Georgia, aud California. Maine, 
with its cool clinmte, its mountains of tindier, its water- 
power for manufacturing establishments, and its neigli- 
boiing fishiug-gr>»unds, may desire special legislation to 
develop its industries and promote its prosperity. Georgia, 
with its cotton fields, its bahiily air, aud its productive soil, 
may require a very different s3'Stem of measures for which 
the legislation of Maine would be unsuitable. California, 
with its gold* and silver mines, its seasons of rain and 
drought, the latter requiring [irovision for irrigation ; its 
vast production of cereals and fruits, its position on the 
Pacific Ocean encoui-aging commerce wdth Asia, may well 
call for other and diti'erent legislation. Under our federal 
system each of these States can pursue its own policy 
without au}^ jarring between them. The government of 
the Union is over all, preserving peace among them, and 
protecting them all from foreign aggression or violence. 

In the argument of the Cruikshank case before the 
Supreme Court, one of the counsel* used the followino- 
language, which well presents this sul)ject : 

" This complex government was curiously contrived to give liberty and 
safety to the people of all the States. It Avas fashioned by the people, in 
the name of the people, and for the people. Its aim was to keep the 
peace among the States and to manage atfairs of common concern, while 
it left to the States the entire management of their own afliiirs. Its found- 
ers were wise and practical men. They knew what history had taught 
from the beginning of Greek civilization, that a number of small repub- 
lics would perish without federation, and that federation would destroy 
the small republics without such a barrier as it was impossible to pass. 



David Dudley Field. 



176 

Liberty and safety were the ends to be won by the don])le and oomiilex 
organization; liberty from the States, and safety from the Union, and 
the founders thought that they had contrived a scheme which would 
make the States and the Union essential parts of a great whole ; that 
they liad set bounds to each which they could not pass ; in short, that 
they had founded ' liberty and union, one and inseparable.' 

" No man in his senses could have supposed, at the formation of the 
Constitution, or can now suppose, that a consolidated government, ex- 
tending over so much territory and so many people, can last a generation 
without the destruction of the States and of republican government with 
them. History is a fable, and political philosophy a delusion, if any 
government other than monarchical can stretch itself over tifty degrees 
of longitude and half as many of latitude, with fifty millions of people, 
where there are no local governments capable of standing by themselves 
and resisting all attempts to imperil their self-existence or impair their 
authority. The moment it is conceded that Washington may, at its dis- 
cretion, regulate all the concerns of New York and California, of Louisi- 
ana and Maine; that the autonomy of the States has no defence stronger 
than the self-denial of fluctuating congressional majorities; at that mo- 
ment the republic of our flithers will have disappeared, and a republic 
in name, but a despotism in fact, will have taken its place, to give way 
in another generation to a government with another name, and other 
attributes." 

Ill his dissenting- opinion in the Pensacola Telegraph 
case Judge Field gave expression to similar views, as 
follows: 

" The late war was carried on at an enormous cost of life and property 
that the Union might be preserved ; but unless the independence of tlie 
States within their proper spheres be also preserved the Union is value- 
less. In our form of government the one is as essential as the other ; and 
a blow at one strikes both. The general government was formed for 
national purposes, j)rincipally that we might have within ourselves uni- 
formity of commercial regulations, a common currency, one postal system 
and that the citizens of the several States might have in each equality of 
right and privilege ; and that in our foreign relations we might present 
ourselves as one nation. Bat the protection and enforcement of private 
rights of both persons and property, and the regulation of domestic af- 
fairs, were left chiefly with the States, and unless they are allowed to re- 
main there it will be impossible for a country of such vast dimensions as 
ours, with every variety of soil and climate, creating different pursuits 
and conflicting interests in different sections, to be kept together in 
peace. As long as the general government confines itself to its great but 
limited sphere, and the States are left to control their domestic affairs 
and business, there can be no ground for public unrest and disturbance. 
Disquiet can only arise from the exercise of nngranted powers." — (96 
U. S., 23.) 



177 

Tlio fourtec'iitli aiuoiulnieut \ni< not diauged tliis con- 
trol of the Statos over matters of loeal concern. It only 
prohibits partial and discriminating legislation by them, 
requiring that all persons within their jnris(ncli()n shall 
receive the equal protection of the laws. It interferes with 
the previous powers of the States in no other respect. 

But by far the most exhaustive and elaborate consider- 
ation of the relations between the general government 
and that of the States, which has ever been liad in the 
Supreme Court, is found in the dissenting opinions of 
Judge Field in the recent jury cases from Virginia, and 
in the election cases from Ohio and Maryland. 

There were two jury cases ; one arising upon the in- 
dictment of a county judge for not selecting as jurors per- 
sons of the colored race; and the other upon the removal 
of prisoners from a State court to a federal court after 
their conviction because persons of that race were not 
selected as jurors in the State court. 

The first case arose as follows: 

In Virginia all male citizens between the ages of twenty- 
one and sixty, who are entitled to vote and hold office un- 
der tlie constitution and laws of the State, are lial)le, with 
certain exceptions, not material to be here mentioned, to 
serve as jurors. The judge of each county or corporation 
court is required to prepare annually a list of such inhab- 
itants of the county or corporation, not less than one hun- 
dred, nor exceeding three hundred in number, " as he 
shall think well qualified to serve as jurors, being persons 
of sound judgment and free from legal exception." The 
name of each person on the list thus prepared is to be 
written on a separate ballot and placed in a Ijox to be kept 
by the clerk of the court. From this box the names of 
persons to be summoned as grand and petit jur«)rs of the 
county are to be drawn. 

The law, in thus providing for the preparation of the 
list of persons from whom the jurors are to be taken, 
makes no discrimination against persons of the colored 
12 



178 

race. The judge of the county or corporation court is re- 
stricted in his action oidy by the condition that the per- 
sons selected sliall, in his opinion, be "well qualified to 
serve as jurors," be " of sound judgment," and " free from 
legal exception." A¥hether they possess these qualifica- 
tions, is left to his determination. 

In 1878 J. D. Coles was the judge of the County Court ■ 
of the County of Pittsylvania, in A^irginia, and had held 
that office for some years. It was not pretended that, in 
the discharge of his judicial duties, he had ever selected 
as jurors persons who w^ere not qualified to serve in that 
character, or who were not of sound judgment, or who 
were not free from legal exception. It was not even sug- 
gested in argument that he had not at all times faithfully 
obeyed the law of the State ; yet he was indicted in the 
District Court of tlie United States for the Western Dis- 
trict of Virginia for having, on some undesignated day in 
the year 1878, excluded and failed to select as grand and 
petit juroj's, citizens of the county, on account of race, 
color, and previous condition of servitude. The indict- 
ment did not state who those citizens were, or set forth 
any particulars of the oti'ence, but charged it in the gen- 
eral words of a definition. The district court, neverthe- 
less, issued a bench warrant, upon which the judge was 
arrested and, refusing to give bail, he was held in custody 
to answer the indictment. He thereupon presented to the 
Supreme Court of the United States a petition for a certi- 
orari to that court to send up .the record of its proceedings 
for examination, and for a writ of habeas corpus, alleging 
that its action was without jurisdiction, and that his im- 
prisomnent thereunder was unlawful, and praying to be 
released therefrom. 

The Commonwealth of Virginia also presented a simi- 
lar petition, declaring that she was injured by being de- 
prived of the services of her judicial officer, by his un- 
lawful arrest and imprisonment. 

The indictment was founded upon the fourth section of 



17I» 

tlij act of Congress of March 1st, 187'), ''to protccl all 
c-itizoiis in their civil and legal rights," which dcchuvs : 
'^ That no citizen possessing all other qualifications, which 
are or may be prescribed by law, shall be disqualified for 
service as grand or petit juror, in any court of the United 
States, or of any State, on account of race, coloi-, or pre- 
vious condition of servitude ; and any officer or other per- 
son charged with au}^ duty in llie selection or summoning 
of jurors, who shall exclude or fail to summon any citizen 
for the cause aforesaid, shall, on conviction thereof, be 
deemed guilty of a misdemeanor, and be fined not more 
than five thousand dollars." 

The case was elaborately and ably argued liydudge 
Robertson and the Attorney-General of Virginia for the 
})etitioner, Coles, and the Commonwealth ; and l)y the 
Attorney-General of the United States and Judge AYil- 
oughby in opposition. 

The court held the act of Congress constitutional, the 
indictment valid, and denied the petitions of Judge Coles 
and the Commonwealth of Virginia. A very elaborate 
opinion on sustaining their action was given by Judge 
Strong for the majority of the court. Judges (^liftbrd and 
Field dissented, Judge Field dehvering a dissenting opin- 
ion. In that opinion lie contended that the district court 
exceeded its jurisdiction in issuing its process for the arrest 
of Judge Coles, on two gi-ounds: 1st, because, assuming that 
the act of Congress of 1875 was constitutioiud and valid 
legislation, the indictment described no ofience uiuler it, 
but was void on its face; and 2nd, because that act, in the 
section upon which the indictment was founded, so far as 
it related to jurors in State courts, was unconstitutional 
and void. On the second ground Judge Field said as 
follows : 

" Previous to the late amendments it would not have been contended, 
by any one familiar with the Constitution, that Congress was vested with 
any power to exercise supervision over the conduct of State officers in 
the discharge of their duties under the laws of the State, and prescribe 
a punishment for disregarding its directions. It would have been con- 



180 

ceded that the selection of jurors was a subject exclusively for regulation 
by the States ; that it was for them to determine who should act as jurors 
in their courts, from what class they should be taken, and what qualifi- 
cations they should possess ; and that their officers in carrying out the 
laws in this respect were responsible only to them. The States could 
have abolished jury trials altogether, and required all controversies to be 
submitted to the courts without their intervention. The sixth and sev- 
enth amendments, in which jury trials are mentioned, apply only to the 
federal courts, as has been repeatedly adjudged. 

" The government created by the Constitution was not designed for the 
regulation of matters of purely local concern. The States required no 
aid from any external authority to manage their domestic affairs. They 
were fully competent to provide for the due administration of justice 
between their own citizens in their own courts, and they needed no di- 
rections in that matter from any other government, any more than they 
needed directions as to their highways and schools, their hospitals and 
charitable institutions, their public libraries, or the magistrates they 
should appoint for their towns and counties. It was only for matters 
which concerned all the States, and which could not be managed by them 
in their independent capacity, or managed only with great difficulty and 
embarrassment, that a general and common government was desired. 
Whilst they retained control of local matters, it was felt necessary that 
matters of general and common interest, Avhich they could not wisely 
and efficiently manage, should be entrusted to a central authority. And 
so to the common government, which grew out of this prevailing neces- 
sity, was granted exclusive jurisdiction over external affiiirs, including 
the great powers of declaring war, making peace, and concluding treaties ; 
but only such powers of internal regulation were conferred as were es- 
sential to the successful and efficient working of the government estab- 
lished ; to facilitate intercourse and commerce between the people of the 
different States, and secure to them equality of protection in the several 
States. 

" That the central government was created chiefly for matters of a 
general character, which concerned all the States and their people, and 
not for matters of interior regulation, is shown as much by the history of 
its formation, as by the express language of the Constitution. The Union 
preceded tlie Constitution. As happily expressed by the late Chief Jus- 
tice, ' it began among the Colonies and gi-ew out of common origin, mu- 
tual sympathies, kindred principles, similar interests, and geographical 
relations. It was confirmed and strengthened by the necessities of war, 
and received definite form and character and sanction from the Articles 
of Confederation.'— (Texas vs. White, 725. ) Those articles were prepared 
by the Continental Congress, which was called to provide measures for the 
common defence of the colonies against the encroachments of the British 
Crown, and which, foiling to secure redress, declared their independence. 
Its members foresaw that when the independence of the Colonies w;as 



181 

established and acknowleilgcd, their condition as separate and independ- 
ent States woiihl he beset with dangers throaleninu' their peaee and safety ; 
tliat disputes arisini;- tVoni o;inllietinu' interests and rivah-ies, always inci- 
dent to nei<>;hborin,n- nations, would lead to arni<>d collisions and expose 
them to re-conquest by tlie niolher country. To ])rovide against the 
jiossibility of evils of this kin<l, the .\rticles of (Confederation were pre- 
pared and sul)uiitted to the legislatures of the several States, and llnally 
in 1781 were adopted. They declared that the Htates entered into a firm 
league of friendship with each other for their coninum defence; the se- 
curity of their liberties and their mutual and general welfare; and they 
bound themselves to assist each other against attacks on account of relig- 
ion, sovereignty, trade, or any other ])reteuce. The^^ clothed the new 
government created l>y them with i)owers supposed to be ampleto secure 
these ends, aiul declared that there sliould be freedom of intercourse and 
commerce between the inhabitants of the several States. They provided 
for a general Congress, and, among other things, invested it with the ex- 
clusive liower of determining on peace and war, except in case of iava- 
sioa of a State by enemies or imminent danger of such invasion by In- 
dians; of sending and receiving ambassadors, entering into treaties and 
alliances ; of regulating the alloy and value of coin struck by the au- 
thority of the States or of the United States; of fixing the standard of 
weights and measures ; of regulating the trade and managing all affliirs 
with the Indians ; and of establishing and regulating post-offices from one 
State to another ; and they placed numerous restraints upon tlie States. 
But by none of the articles was any interference authorized with the 
purely internal affairs of the States, or with any of the instrumentalities 
by which the States administered their governments and dispensed .jus- 
tice among their people ; and they declared in terms that each State re- 
tained its sovereignty, freedom, and independence, and every power, ju- 
risdiction, and right which was not by the articles expressly delegated to 
the United States in Congress assembled. 

" When the government of the Confederation failed, chiefly through the 
want of all coercive authority, to carrv^ into effect its measures, its power 
being only that of recommendation to the States, and the present Con- 
stitution was adopted, the same general ends were sought to be attained, 
namely, the creation of a central government, which would take exclu- 
sive charge of all our foreign relations, representing the people of all the 
States in that respect as one nation, and would at the same time secure 
at home freedom of intercourse between the States, equality of protection 
to citizens of each State in the several States, uniformity of commercial 
regulations, a common currency, a standard of weights and measures, one 
postal system, and such other matters as concerned all the States and 
their people. 

" Accordingly, the new government was invested with powers adequate 
to the accomplishment of these purposes, with which it could act directly 
upon the people, and not by recommendation to the States, and enforce 



182 

its measures through tribunals and olticers of its own creation. There 
were also restraints placed upon the action of the States to prevent in- 
terference with the authority of the new government, and to secure to 
all persons protection against punishment by legislative decree, and eu- 
sure.the fulfillment of contract obligations. But the control of matters 
of purely local concern, not coming within the scope of the powers granted 
or the restraints mentioned, was left, where it had always existed, with 
the States. The new government being one of granted powers, its au- 
thority was limited by them and such as were necessarily implied for 
their execution. But lest from a misconception of their extent these 
powers might be abused, the tenth amendment was at an early day 
adopted, declaring that ' the powers not delegated to the United States 
by the Constitution, nor prohibited by it to the States, are reserved to 
the States respectively, or to the people.' 

" Now. if we look into the Constitution we shall not find a single word 
from its opening to its concluding line, nor in any of the amendments in 
force before the close of the civil Avar, nor, as I shall hereafter endeavor 
to show, in those subsequently adopted, which authorizes any interference 
by Congress with the States in the administration of their governments, 
and the enforcement of their laws with respect to any matter over which 
jurisdiction was not surrendered to the United States. The design of its 
framers was not to destroy the States, but to form a more perfect union 
between them, and whilst creating a central government for certain great 
purposes, to leave to the States in all matters, the jurisdiction of which 
was not surrendered, the functions essential to separate and independent 
eKistence. And so the late Chief Justice, speaking for the court in 1869, 
said: ' Not only, therefore, can there bs no loss of separate and independ- 
ent autonomy to the States, through their union und:^r tlie Constitution, 
but it may be not unreasonably said that the preservation of the States, 
and the maintenance of their governments, are as much within the de- 
sign and care of the Constitution as the preservation of the Union and 
the maintenance of the national government,' and then he adds, in that 
strikino- language which gives to an old truth new force and significance, 
that ' the Constitution, in .all its provisions, looks to an indestructible 
Union composed of indestructible States.'— (Texas vs.White, 7 Wall., 725.) 
" And Mr. Justice Nelson, also speaking for the court, in 1871, used 
this language : ' The general government, and the States, although both 
exist within the same territorial limits, are separate and distinct sov- 
ereignties, acting separately and independently of each other, within their 
respective spheres. The former in its appropriate sphere is supreme; but 
the States within the limits of their powers not granted, or, in the lan- 
guage of the tenth amendment, 'reserved,' are as independent of the gen- 
eral government as that government within its sphere is independent of 
the States.' And again : ' We have said that one of the reserved powers 
was that to establish a judicial department ; it would have been more ac- 
curate, and in accordance with the existing state of things at the time, to 



188 

liavo said llic i)o\vcr to iiiaiutaiu a JLulicial (lipartmciil. All ol' the 
thirteen Htates were in the possession of this power and had exercised it 
at the adopt ion of the Constitntiou ; and it is not pretended that any 
grant of it to tlic geni'ral government is I'onnd in that instrument. It is, 
therefore, one (jf tlii' sovereign powers vesu-d in tlie States by their con- 
stitutions, which remained unaltered and unimpaired, and in respect to 
which the State is as independent of the general government as that 
government is independent of the States.' — (The Collector vs. Day, 11 
Wall., 1-24-6.) 

"The cases of Texas vs. White, and Collector vs. Day, were decided 
after the thirteenth and fourteenth amendments, upon which it is sought 
to maintain the legislation in question, were adopted ; and wi^i their 
IKOvisions the Chief Justice and Mr. Justice Nelson, and the court for 
which they spoke, v.-ere familiar. Yet neitlier they, nor any other judge 
of the court, suggested that the doctrines announced in the opinions, 
from which I have quoted, were in any respect modi lied or affected l)y 
the amendments. 

"Nothing, in my judgment, could have a greater tendency to destroy 
the independence and autonomy of the States ; reduce them to a humili- 
ating and degrading dependencs upon the central government ; engender 
constant irritation ; and destroy that domestic tranquillity which it was 
one of the objects of the Constitution to insure, than the doctrine asserted 
in this case, that Congress can exercise coercive authority over judicial 
officers of the States in the discharge of their duties under State laws. 
It will be only another step in the the same direction towar.ds consolida- 
tion, when it assunres to exercise similar coercive authority over gov- 
ernors and legislators of the States. 

"The Constitution declares that a 'person charged in any State with 
treason, felony, or other crime, who shall flee from justice and be found 
in another State, shall, on demand of the executive authority of the 
State from which he ll;'d, be delivered up, to be removed to the State 
having jurisdiction of the crime.' And yet in the case of The Common- 
wealth of Kentucky vs. Dennison, where a fugitive from justice from 
Kentucky was demanded from the governor of Ohio, and on his refusal 
application was made to this court for a mandamus to compel him to 
perform his duty in this respect, it was held that there was no clause or 
provision in the Constitution which armed the government of the United 
States with authority to compel the executive of a State to xierform his 
duty, nor to inflict any punishment for his neglect or refusal. ' Indeed, 
such a power,' said Mr. Chief Justice Taney, speaking for the whole 
court, ' would place every State under the control and dominion of the 
general government even in the administration of its internal concerns 
and reserved rights.' — (24 How., 107.) And Mr. Justice Nelson, in the 
case of Collector vs. Day, where it was held that it was not competent 
for Congress to impose a tax upon the salary of a judicial officer of a 
State, said, that ' any government whose means employed in conducting 



184 

its operations are mafle subject to the control of another and distinct gov- 
ernment, can exist only at the mercy of that government.' I could add 
to these authorities, if anything more were required, that all the re- 
corded utterances of the statesmen who participated in framing the Con- 
stitution and urging its adoption, and of the publicists and jurists who 
have since studied its language and aided in the enforcement of its pro- 
visions, are inconsistent with the pretension advanced in this case by the 
counsel of the government. 

" The duties of the county judge in the selection of jurors were judi- 
cial in their nature. They involved the exercise of discretion and judg- 
ment. He was to determine who were qualified to serve in that charac- 
ter, am* for that purpose whether they possessed sound judgment and 
were free from legal exceptions. The law under which he acted had been 
in force for many years, and had been always considered by the judicial 
authorities of Virginia to be in conformity with its constitution, wliich 
inhibits the legislature from requiring of its judges any other than judi- 
cial duties. A test as to the character of an act is found in the power of 
a writ of mandamus to enforce its performance in a particular way. If 
the act be a judicial one, the writ can only require the judge to proceed 
in the discharge of his duty with reference to it ; the manner of per- 
formance cannot be dictated. Here the writ could not command the 
county judge to select as jurors any particular persons, black or white, 
but only to proceed and select such as are qualified, its command in that 
respect being subject to the limitation incident to all commands of such 
writs upon judicial officers toucliing judicial acts. 

" The thirteenth and fourteenth amendments are relied upon, as al- 
ready stated, to support the legislation in question. The thirteenth 
amendment declares 'That neither slavery nor involuntary servitude, 
except as a punishment for crime, whereof the party shall have been 
duly convicted, shall exist within the United States, or any place subject 
to their jurisdiction.' The fourteenth amendment, in its first section, 
which is the only one having any bearing upon the questions involved in 
this case, declares that 'All persons born or naturalized in the United 
States, and subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No State shall make or 
enforce any law which shall abridge the privileges or immunities of cit- 
izens of the United States ; nor shall any State deprive any i^erson of 
life, liberty, or property without due process of law; nor denj' to any 
person within its jurisdiction the equal protection of the laws.' The fif- 
teenth amendment, which declares that 'the right of citizens of the 
United States to vote shall not be denied or abridged by the United 
States, or by any State, on account of race, color, or previous condition of 
servitude,' is not material to the question before us, except as showing 
that it was only with respect to the suffrage that an interdict was in 
terms placed against legislation on account of race, color, or previous 
condition of servitude. Equality in their civil rights was in other waj's 



1S5 

scoured to persons of the colored nice ; and tlie hnllol Ixiiiii assured to 
them, an elTeetual means against unjust lejiislal ion svas phieed in tlieir 
liands. To each of these amendments a clause is achled autliori/.in^ Con- 
gress to enforce its ])rovisions ]>y ' aii])rojiriate legishition.' 

•'The history of thi' amendments is fresh in tiie recollection of all of 
us. They grew out of the late civil war and the events which followed 
it. They were primarily designed to give freedom to persons of the Afri- 
can race, prevent their future enslavement, make them citizens, jjrevent 
discriminating State legislation against their rights as freemen, and se- 
cure to them the ballot. The generality of the language used neces.sa- 
rily extends some of their provisions to all iier.sons of every race and 
color; but in construing the amendments and giving effect to Iheni, the 
occasion of their adoption and the luirposes tln^y a\ ere designed to attain 
should be always borne in mind. Xor should it Ix^ forgot I en thai they 
are additions to the previous amendments, and are to Ik" construed in con- 
nection with them and the original Constitution as one in.strninent. 
They do not, in terms, contravene or repeal anything which previously 
existed in the Constitution and those amendments. Aside from the ex- 
tinction of slavery, and the declaration of eitizen.ship, their provisions are 
merely prohibitory upon the States; and there is nothing in their lan- 
guage or purpose which indicates that they are to be construed or en- 
forced in any way different from that adopted with reference to previous 
restraints upon the States. The provision authorizing Congress to enforce 
them by appropriate legislation does not enlarge their scope, nor confer 
any authority which would not have existed independently of it. No 
legislation would be appropriate which should contravene the express 
prohibitions upon Congress previously existing, as, for instance, that it 
should not pass a bill of attainder or an ex post facto law. Nor would 
legislation be appropriate which should conflict with the implied prohi- 
bitions upon Congress. They are as obligatory as the express prohibi- 
tions. The Constitution, as already stated, contemplates the existence 
and independence of the States in all their reserved powers. If the States 
were destroyed there could of course be no United States. In the lan- 
guage of this court, in Collector vs. Day, ' without them the general gov- 
ernment itself would disappear from the family of nations.' Legislation 
could not, therelbre, l)e appropriate which, under pretence oi' proliil)iting 
a State from doing certain things, should tend to destroy it, or any of its 
essential attributes. To every State, as understood in the American sense, 
there must be, with reference to the subjects over which it has jurisdic- 
tion, absolute freedom from all external interference in the exercise of its 
legislative, judicial, and executive authority. Congress could not under- 
take to prescribe the duties of a State legislature and the rules it sliould 
follow, and the motives by which it should be governed, and authorize 
criminal prosecutions against the members if its directions were disre- 
garded; for the independence of the legislature is essential to the inde- 
pendence and autonomy of the State. Congress could not lay down rules 



186 

for the guidance of the State judiciary, and prescrihe to it the hiw and 
the motives by which it should be controlled, and if these were disre- 
garded, direct criminal proceedings against its members ; because a. judi- 
ciary independent of external authority is essential to the independence 
of the State, and, also, I may add, to a just and efficient administration 
of justice in her courts. Congress could not dictate to the executive of 
a State the bills he might approve, the pardons and reprieves he might 
grant, or the manner in which he might discharge the functions of his 
office, and assume to punish him if its dictates were disregarded, because 
his independence, within the reserved powers, is essential to thut of the 
State. Indeed, the independence of a State consists in the independence 
of its legislative, executive, and judicial officers, through whom alone it 
acts. If this were not so, a State would cease to be a self-existing and an 
indestructible member of the Union, and would be brought to the level 
of a dependent municipal corporation, existing only with such powers as 
Congress might prescribe. 

"I cannot think I am mistaken in saying that a change so radical in 
the relation between the federal and State authorities, as would justify 
legislation interfering with the independent action of the different de- 
partments of the state governments, in all matters over which the States 
retain jurisdiction, was never contemplated by the recent amendments. 
The i^eople in adopting them did not suppose tliey were altering the 
fundamental theory of their dual system of governments. The discus- 
sions attending their consideration in Congress, and before the people, 
when presented to the legislatures of the States for adoption, can be suc- 
cessfully appealed to in support of this assertion. The Union was pre- 
served at a fearful cost of life and property. The institution of slavery 
in u portion of the country was the cause of constant irritation and 
crimination between the people of tli3 S.ates where it existed and those 
of the free States, which finally led to a rupture between them and to 
the civil war. As the war progressed its sacrifices and burdens filled the 
people of the loyal States with a determination, that not only should the 
Union be preserved, but that the institution, which, in their judgment, 
had threatened its dissolution, should be abolished. Th;^ emancipation 
proclamation of President Lincoln expressed this determination, though 
placed on the ground of military necessity. The thirteenth amend- 
ment carried it into the organic law. That amendment prohibits 
slavery and involuntary servitude, except for crime, within the United 
States, or any place subject to their jurisdiction. It, language is not re- 
stricted to the slavery of any particular class. It applies to all men ; and 
embraces in its comprehensive language not merely that form of slavery 
which consists in the denial of personal rights to the slave, and subjects 
him to the condition of a chattel, but also serfage, vassalage, peonage, 
villanage, and every other form of compulsory service for the benefit, 
pleasure, or caprice, of others. It was intended to render every one 
within the domain of the Eepublic a freeman, with the right to follow the 



187 

ordinary pursuits of life without other restraints tlian such asaroaiiplicd 
to all others, and to enjoy equally witli llicm the caruiugs of his lalior. 
]>ut it confers no political rights : it leaves the States free, as Ijefore its 
adoption, to determine wlio shall hohl tlieir oflices and i.artieii)ate in (lie 
ailniiiiisfration ol' their laws. A similar proliil)iti()ii ol' slavery and in- 
voluntary servitude was in the constitution of several Slates ]>revi(uis to 
its adoption by the United States: and it was never ludd to conf<a' any 
political rights. 

" On the eighteenth of December, 18(5.3, this amendment was ratilitd, 
that is, the olticial proclamation of its ratification was then made ; and 
in April of the following year the civil rights act was ])assed. Its lirst 
section declares that all persons burn in the I'liited Slates, and not sub- 
ject to any foreign power, excluding Indians not ta.\ed, are "citizens of 
the United States,' and that 'such citizens, of every race and color, with- 
out regard to any previous condition of slavery or involuntary servitude, 
except us a })unishment for crime, of which the party .shall have been 
duly convicted, shall have the same right in every State and territory in 
the United States, to make and enforce contracts, to sue, be parties and 
give evidence, to inherit, purchase, lease, .sell, hold, and convey real and 
personal property, and to full and ecjual benefit of all laws and iimeetd- 
ings for the security of person and property as is enjoyed by white \wr- 
sons.' This legislation was intended to secure to all persons in the United 
States practical freedom. But its validity was questioned in many quarters 
entitled to consideration, and some of its provisions not long afterwards 
were declared by State courts to be beyond the constitutional authority 
of Congress.^(Bawlin v.s. Commonwealth, 2 Bush, 5.) There were also 
complaints made that notwithstanding the amendment abalishing slav- 
ery and involuntary servitude, except for crime, the freed men were, by 
legislation in some of the Southern States, subjected to such burdensome 
disabilities in the acquisition and enjoyment of property, and the pursuit 
of happiness, as to render their freedom of little value. — (Slaughter-House 
Cases, 16 Wall., 70.) There were, besides, complaints of the existence, in 
those sections, of a feeling of dislike towards citizens of the North seek- 
ing residence there, and towards such of their own citizens as had ad- 
hered to the national government during the war, which could not fail 
to find expression in hostile and discriminating legislation. It is imma- 
terial whether these complaints were justified or not; they were believed 
by many persons to be well-founded. To remove the cause of them ; to 
obviate objections to the validity of legislation similar to that contained 
in the first section of the civil rights act ; to prevent the possibility of 
hostile and discriminating legislation in future by a State against any cit- 
izen of the United States, and the enforcement of any such legislation 
already had; and to secure to all per.sons within the jurisdiction of tjie 
States the equal protection of the laws, the first section of the fourteenth 
amendment was adopted. Its first clause declared who are citizens of 
the United States and of the States. It thus removed from discussion 



188 

the question, which liad previously been debated, and though decided, 
not settled, b3' the judgment in the Dred Scott case, whether descendants 
of persons brought to this country and sold as slaves were citizens within 
tlie meaning of the Constitution. It also recognized, if it did not create, 
a national citizenship, as contradistinguished from that of the States. 
But the privilege or the duty, whichever it may be called, of acting as a 
Juror in the courts of the country, is not an incident of citizenship. 
Women are citizens ; so are the aged above sixty, and children in their 
minority ; yet they are not allowed in Virginia to act as jurors. Though 
some of these are in all respects qualilicd for such service, no one will pre- 
tend that their exclusion b\' law from the jury list impairs their rights as 
citizens. 

" The second clanse of the first section of the amendment declares that 
'no State shall make or enforce any law which shall abridge the privi- 
leges or immunities of citizens of the United States.' In the Slaughter- 
House cases, it was held by a majority of the court that this clause liad 
reference only to privileges and immnnities of citizens of the United 
States, as distinguished from those of citizens of the States, and, there- 
fore, did not apply to those fundamental civil rights which belong to citi- 
zens of all free governments, such as the right to acquire and enjoy prop- 
erty and pursue happiness, subject only to such just restraints as might 
be prescribed for the general good. If this construction be correct there 
can be no pretence that the privilege or duty of acting as a juror in a 
State court is within the inhibition of the clause. Nor could it be within 
that inhibition if a broader construction were given to the clause, and it 
should be held, as contended by the minority of tlie court in the Slaugh- 
ter-House cases, that it prohibits the denial or abridgment by any State 
of those fundamental privileges and immunities which of right belong to 
citizens of all free governiuents ; and with which the Declaration of In- 
dependence proclaimed that all men were endowed by their Creator, and 
to secure which governments were instituted among men. These funda- 
mental rights were .secured, previous to the amendment, to citizens of 
each State in the other States, by Jhe second section of the fourth article 
of the Constitution, which declares that ' the citizens of each State shall 
be entitled to all privileges and immunities of citizens in the several 
States.' Among those privileges and immunities, it was never contended 
that jury duty or jury service was included. 

'■ The third clause in the first section of the amendment declares that 
no State ' shall deprive any person of life, liberty, or property without 
due process of law,' It will not be contended that this clause confers 
upon the citizen any right to serve as a juror in the State courts. It 
exi.sts in the constitutions of nearly all the States, and is only an addi- 
tional security against arbitrary deprivation of life and liberty, and arbi- 
trary spoliation of i^roperty. It means that neither can be taken, or the 
enjoyment thereof impaired, except in the course of the regular admin- 
istration of the law in the established tribunals. The existence of this 



ISO 

clause in tlio ainoiulinciil is fo inc a ixM-suasivc aruununl (hat thoso Avlio 
framed it. and the h'-ishitures of the Stales which a(h>i.te(l it. never eoii- 
templateil that the i)r()hihiti()!i was to l>e eiiloreed in any other way than 
throuiili the jiidieial t riliuiials, as previous pvohihit ions upon the >States 
ha<l always been enloreed. If Conj>;ress could, as an appropriate means 
to eutbrcc the proliibition, prescrilie criminal i)r()seeuti()ns ibr its infrac- 
tion against legislators, judges, and other officers of tlie States, it would 
be authorized to frame a vast portion of their laws, for there are few sub- 
jects upon which legislation can be had besides life, liberty, and property. 
In determining what constitutes a deprivation of property, it might pie- 
scribe the conditions upon wiiich property shall be aecinired and hehl ; 
and declare as to what sulvjeets proiierty rights .shall e.xist. In determin- 
ing what constitutes deprivation of liberty, it might prescribe in wliat 
way and by what means the liberty of the citizen shall be deemed i)ro- 
tected. In prescribing punishment for deprivation of life, it might pre- 
scribe a code of criminal procedure. All this and more might be done if 
it once be admitted, as the court asserts in this case, that Congress can 
authorize a criminal pi-o.secution for the infraction of the prohibitions. 
It cannot prescribe punishment without defining crime, and, therefore, 
must give expression to its own views as to what constitutes protection 
to life, liberty, and property. 

" The fourth clause in the first section of the amendment declares that 
no State shall 'deny to any person within its jurisdiction the equal pro- 
tection of the laws.' Upon this clause the counsel of the district judge 
chiefly rely to sustain the validity of the legislation in question. But 
the universality of the protection secured necessarily renders their posi- 
tion untenable. All persons within the jurisdiction of the State, whether 
permanent residents or temporary sojourners, whether old or young, 
male or female, are to be equally protected. Yet no one will contend 
that equal protection to women, to children, to the aged, to aliens, can 
only be secured by allowing i>er,sons of the class to which they belong to 
act as jurors in cases affecting their interests. The equality of protection 
intended does not requii-e that all persons shall be permitted to partici- 
pate in the government of the State and the administration of its laws, 
to hold its offices, or be clothed with any public trusts. As already said, 
the universality of the protection assured repels any such conclusion. 

"The equality of the protection secured extends only to civil rights as 
distinguished from those which are political, or arise from the ibrm of the 
government and its mode of administration. And yet the reach and 
influence of the amendment are immense. It opens the courts of the 
country to every one, on the same terms, for the security of his person and 
property, the prevention and redress of wrongs, and the enforcement of 
contracts; it assures to every one the same rules of evidence and modes 
of procedure ; it allows no impediments to the acquisition of property, 
and the pursuit of happiness, to which all are not subjected ; it suffers no 
other or greater burdens or charges to be laid upon one than such as are 



190 

eqnalh' borne by others; ami in the administration of criminal justice it 
permits no different or greater punishment to be imposed upon one than 
such as is prescribed to all for like offences. It secures to all persons their 
civil rights upon the same terms ; but it leaves political rights, or such as 
arise from the form of government and its administration, as they stood 
previous to its adoption. It has no more reference to them than it has to 
social rights and duties, which do not rest upon any positive law, though 
they are more potential in controlling the intercourse of individuals. In 
the consideration of questions growing out of these amendments much 
confusion has arisen from a failure to distinguish between the civil and 
the political rights of citizens. Civil rights are absolute and personal. 
Political rights on the other hand ai'e conditioned and dependent upon 
the discretion of the elective or appointing power, whether that be the 
people acting through the ballot, or one of the departments of their gov- 
ernment. The civil rights of the individual are never to be withheld, 
and may be always judicially enforced. The political rights which he 
may enjoy, such as holding office and discharging a public trust, are qual- 
ified because their possession depends on his fitness, to be adjudged by 
tliose whom society has clothed with the elective authority. The thir- 
teenth and fourteenth amendments were designed to secui'c the civil 
rights of all persons of every race, color, and condition, but tliey left to 
the States to determine to whom the possession of political power sliould 
be entrusted. This is manifest from the fact that when it was desired to 
confer political power upon the newly-made citizens of the States, as was 
done by inhibiting the denial to them of the suffrage on account of race, 
color, or previous condition of servitude, a new amendment was required. 

" Thedoctrine of the district judge, forwhich the counsel contend, would 
lead to some singular results. If, "when a colored person is accused of a 
criminal offence, the presence of persons of his race on the jury by which 
he is to be tried is essential to secure to him the equal protection of the 
laws, it would seem tliat the presence of such persons on the bench would 
be equally essential, if the court should consist of more than one judge, 
as in many cases it may ; and if it should consist of a single judge, that 
such protection would be impossible. A similar objection might he raised 
to the composition of any appellate court to which the case, after ver- 
dict, might be carried. 

" The position that in cases where the riglits of colored persons are con- 
cerned, justice will not be done to them unless they have a mixed jury, 
is founded upon the notion that in such cases white persons will not be 
fair and honest jurors. If this position be correct there ought not to be 
any white persons on the jury where the interests of colored porsons only 
are involved. Tliat jury would not be an honest or fair one, of which 
any of its members shouhl be governed in his judgment* by other consid- 
erations than tiie law and the evidence ; and that decision would hardly be 
considered just which should be reached by a sort of compromise, in 
which the prejudices of one race were set off against the prejudices of the 
other. To be consistent, those who hold this notion should contend that 



191 

in cases an'octinc moinl)ors of the colored race only tlie juries should I)C 
composed entirely of colored persons, and that the presiding jiidjie should 
he of the sume race. To this result the do(;trine asserted by the District 
Conrt loj-icallN- leads. The jury de medicUUc linf/tix, anciently allowed 
in England lor the trial of an alien, was expressly authorized by statute 
probably as much because of the diftercncc of language and customs V)e- 
tweeu him and Englisluuen. and the greater probability of his defence 
being more fully understood, as because it would be heard in a nion- 
friendly spirit by jnrors of his own country and language. 

" If these views as to the purport and meaning of the thirteenth and 
fourteenth amendments of the Constitution be correct, there is no warrant 
for the act of Congress under which the indictment in this (;ase was found, 
and the arrest and imprisonment of the petitioner were unlawful, and his 
release should be ordered. 

" The case is one which should not be delayed for the slow process of a 
trial in the court below, and a subsequent appeal, in case of convic- 
tion, to this court to be heard years hence. The Commonwealth of Vir- 
ginia lias represented to ns that the services of her judicial officer arc 
needed in her courts ibr the administration of justice between her citi- 
zens, and she asks that the highest tribunal of the Union will release him 
from his unlawful arrest, in order that he may perform the duties of his 
otfice. Those who regard the independence of the States in all their re- 
served powers— and this includes the indejiendence of their legislative, 
judicial, and executive departments— as essential to the successlnl mainte- 
nance of our form of government, cannot fail to view w ith the gravest 
apprehension for the future, the indictment, in a conit of the United 
States, of a judicial officer of a State for the manner in which he has dis- 
charged his duties under her laws, and of which she makes no complaint. 
The proceeding is a gross offence to the State : it is an attack upon her 
sovereignty in matters over which she has never surrendered her juris- 
diction. The doctrine which sust«ins it, carried to its logical results, would 
degrade and sink her to the level of a mere local municipal corporation ; 
for if Congress can render an officer of a State criminally liable for the 
manner in which he discharges his duties under her laws, it can prescribe 
the nature and extent of the penalty to which he shall be subjected on 
conviction ; it may imprison him for life or punish him by removal from 
office. And if it can make the exclusion of persons from jury service on 
account of race or color a criminal offence, it can make their exclusion 
from office on that account also criminal ; and, adopting the doctrine of 
the district judge in this case, the failure to appoint tl/bm to office will 
be presumptive evidence of their exclusion on that ground. To such a 
result are we logically led. The legislation of Congress is founded, and 
is sustained by this court, as it seems to me, upon a theory as to what 
constitutes the equal protection of the laws, which is purely speculative, 
not warranted by any experience of the country, and not in accordance 
with the understanding of the people as to the meaning of those terms 
since the organization of the government." 



192 

The decision of the court in this case attracted great 
attention throughout the country, for the views expressed 
seemed to indicate a wide departure from previous doc- 
trines, and to recognize in the general government a 
power over the States never before supposed to exist. 
All the principal journals contained comments upon it. 
The following extracts from a leading Republican paper 
of California express witli much force the sentiments of 
thoughtful men of all parties : 

"THE LAST STEP TOWARDS CENTRALIZATION. 



From the Record-Union of March 20th, 1880. 



"In the interpretation of the last judicial advance towards govern- 
mental ceutralizati(*a, the public judgment is warped by partisan preju- 
dice, and Republicans are led to believe that they have witnessed a fresh 
triumph for the principles of their party, when in reality they are un- 
wittingly consenting to the removal of all those checks to centralization 
which afford the strongest guarantees of popular liberty. The decision 
of the United States Supreme Court, in the matter of J. D. Coles and the 
Commonwealth of Virginia, petioners for the writ of habeas corpus, marks 
a decided forward step in that modern policy of governmental metamor- 
phosis which is gradually withdrawing from and denying to the States 
those elements of independent sovereignty and local self-government 
never surrendered by them to the federal government. So insidiously is 
this transformation proceeding, that it promises to have ext&nded beyond 
the possibility of clieck or retracement before the nation has clea'rly 
realized what it is that is being done. Twenty years ago the perception 
of the reserved riglits of the States was so much keener than now tliat 
such a decision as this would certainly have created a profound sensation, 
and as certainly have provoked the most energetic and earnest censure, 
whereas to-day it passes with no more notice than consists in the cus- 
tomary indorsement held indispensable by every party serf when a doc- 
trine supposed to be partisan in its character is promulgated. In fact 
the concernment here is not partisan, but national. Because the Com- 
monwealth of Virginia is a party to the proceeding, and the political 
rights of negroes are in question, it has been hastily concluded that the 
whole matter w* one of reconstruction, and that inasmuch as the court 
had ruled against the State, another defeat for the ' Secessionists ' was to 
be scored. It is necessary to point out that, though in truth reconstruc- 
tion is here dealt with, it is not alone the technical reconstruction of the 
Southern States, but the absolute reconstruction of the Union between 
the States that is now in course of being arranged. 

" It is neither necessary nor desirable to import any political bias into 
the consideration of this subject. It transcends all party issues, for it in- 



volvcs the qiifstiou ol' Uic liUiia- of tlie whole K'epiihlie. It is liere de- 
liberatelj^ set forth by the highest judicial authority that the constitu- 
tional amendments give the federal government powers over the States 
which are incompatible with the maintenance of any independenct; what- 
ever, and which not only facilitate but hasten the transformation of the 
government from a federation of sovereign States to a centralized demo- 
cratic absolutism. The doctrine now asserted goes the length of subor- 
dinating all State authority to federal authority ; for it involves the right 
of the latter to traverse all State legislation, to set aside the rules made 
by State legislatures for the government of the State Judiciary, to puiiish 
State officials for obeying State laws, and in a word, to reduce all tlie 
States to the level of mere municipalities, existing only at the will and 
caprice of Congress. The tendency in this direction lias, as we have oiteu 

pointed out, increased continually since the close of the war. All 

liistory shows that the diffusion of institutional self-government to the 
greatest possible extent is necessary to the securing of the largest meas- 
ure of freedom and the mo.st just and least burdensome government. 
This diffusion the American States enjoyed originally, and it is this which 

is threatened. The danger lies not alone in the strongly marked 

centralizing policy of the Supreme Court, but in the formidable support 

which the corrupt condition of politics gives to this movement. The 

greater a country becomes, the denser its population, the more complex 
its interests, the more necessary is it that the people everywhere should 
keep the levers of self-government in their own hands. For the removal 
ot authority to a distance always involves the weakening of responsibility 
and the encouragement of corruption." 

The second jiiiT ca>e from Viri>-lin:i ai'ose in tliis wise: 
Two colored persons in Virginia wei-e indicted in a county 
court in that State for the crime of murder. The person 
aUeged to ])avc 1:)een murdered was a white man. On heiiio- 
arraigned they pk^adcd not guiUy, and on their demand 
their trial was removed to the circuit court of the county. 
They there moved that the panel of jurors summoned, 
which was composed entirely of wdute persons, should he 
so moditied as to allow one-third of the numher to he per- 
sons of the colored race. 

This motion was denied, as it satisfactorily appeared that 
the jurors had been drawn from the jury-box according to 
law. The prisoners then presented a petition for the re- 
moval of the case to the United States Circuit C'ourt, alleg- 
ing, in suhstance. that the rights .secured by the law pro- 
viding for the equal civil riglits of all citizens of the 
13 



194 

United States were denied to them, inasmuch as their ap- 
phcation for a inixed jniy had heen refused. It also al- 
leged that a strong prejudice existed in the community 
against them on the ground of their color, the person al- 
leged to have been murdered being a white man. Their 
petition was denied and the prisoners were separately tried 
and convicted of murder. Both ol)tained new trials, one 
by motion to the court, and one on appeal to the Court of 
Appeals. When they were brought up for a second trial 
they again moved to have the prosecution removed to the 
Circuit Court of the United States. This was also denied. 
They were then tried separately. In one case the jury dis- 
agreed and the prisoner was removed to jail to await another 
trial. In the other case the prisoner was convicted and he 
was sentenced to imprisonment in penitentiary. 

Whilst the prisoners were in jail, one w^aiting for a new 
trial and the other until he could be removed under his 
sentence to the penitentiary, they procured a copy of the 
record of proceedings against them and presented it to the 
Circuit Court of the United States for the Western Dis- 
trict of Virginia, then held by Alexander Hives, the dis- 
trict judge, with the petition for removal presented to the 
State court, and prayed that the prosecution might be there 
docketed and proceeded with. The circuit court granted 
the petition, directed the cases to be placed on the docket 
and authorized the clerk to issue a writ of habeas corpus to 
the marshal of the district to take the prisoners into his cus- 
tody, and to summon for their trial twenty-iive jurors to 
attend at the next term. A writ of hahe/is corpas was ac- 
cordingly issued, and pursuant to its command the prison- 
ers were taken into the custody of the marshal. There- 
upon the Commonwealth of Virginia presented a petition 
to the Supreme Court of the United States praying for a 
mandamus to be directed to the district judge, command- 
ing him to order tlie marshal to re-deliver the prisoners 
to her authorities, upon the ground that the judge in his 
proceedings had transcended the jurisdiction of his court, 



195 

and exercised powers not vested in liini. An order was 
aceordingh^ issued to the judi>-e to sliow caust' wliy ilic 
writ should not issue. In his return he a(hnitted tlie laets 
stated, and Justitied his action on the ^-rouinl that the re- 
tusal of the State court to set aside the panel of jurors, and 
to give the prisoners a jurv composed in part of tlieir own 
race, was a denial to them of the e([ual pnttection ol' the 
laws, and brotight their eases within the proxision of the 
act of Congress authoi-izing a removal of criminal prose- 
cutions to the federal courts. The attorney -general of Vir- 
ginia, contending that the return was insuiiicient, moved 
that the writ might be issued as pi'aved. 

The application was argued by the same counsel who 
argued the iirst jury case. The court granted the writ 
and ordered that the prisoners should be returned to the 
State court, but it placed its decision on the ground that 
the act of Congress, providing for the removal of criminal 
prosecutions from State to federal courts, was only intended 
for cases where the application was made l)efore a trial or 
final hearing had commenced, and that the denial of 
rights for which a removal was autliorized was such 
as resulted from the constitution or hnvs of the State 
and not such as might l)e manifested at the trial or hear- 
ing ; but it left open the question whether Congress could 
not authorize a transfer of a case to the federal courts 
at any stage of its proceedings wdienever a ruling is 
made denying to the defendant the equal protection 
of the laws. Judges Field and Clitibrd concurred in the 
judgment of the court that the prisoners should be I'e- 
turned to the othcers of Virginia from whose cttstody tliej' 
were taken ; that the prosecution against them should he re- 
numded to the State court from which it was removed, and 
that a mandamus to the district jtidge was an appropriate 
remedy to etiect those ends, but as tliey did not agree with 
all the views expressed in the opinion of the court, and 
there were other reasons equally cogent with those given 
for the decision rendered, Judge Field thonght propei- to 



196 

i>tate, in a separate opinion, the gronncls of their concur- 
rence. After discussing at length the right of the court 
to issue a mandamus in the case, and referring to tlie act 
of Congress, he said as follows : 

"By this enactment it appears that in order to obtain a removal of a 
prosecution from a State to a federal court — except where it is against a 
public officer or other person for certain trespasses or conduct not mate- 
rial to consider in this connection — the petition of the accused must 
show a denial of, or an inability to enforce in the tribunals of the State, 
or of that part of the State where the prosecution is pending, some right 
secured to him by the law providing for the equal rights of citizens or 
jiersons within the jurisdiction of the United States. But how must the 
denial of a right under such a law, or the accused's inability to enforce 
it in the judicial tribunals of the State, be made to appear? So far as 
the accused is concerned, the law requires him to state and verify the 
facts, and from them the court will determine whether such denial or 
inability exists. His naked averment of such denial or inability can 
hardly be deemed sufficient; if it were so, few prosecutions would be 
retained in a State court for insufficient allegations when the accused 
imagined he would gain by the removal. — (Texas vs. Gaines, 2 Woods, 
844.) There must be such a presentation of facts as to lead the court to 
the conclusion that the averments of the accused are well founded. 
There are many ways in which a person may be denied his rights, or be 
iiuable to enforce them in the tribunals of a State. The denial or ina- 
bility may arise from direct legislation, depriving him of their enjoy- 
ment or the means of their enforcement, or discriminating against him or 
the class, sect, or race to which he belongs. And it may arise from popular 
prejudices, passions, or excitement, biasing the minds of jurors and 
judges. Religious animosities, political controversies, antagonisms of 
race, and a multitude of other causes will always operate, in a greater or 
less degree, as impediments to the full enjoyment and enforcement of civil 
rights. We cannot think that the act of Congress €ontemplated a denial 
of, or an inability to enforce one's rights from these latter and similar 
causes, and intended to authorize a removal of a prosecution by reasofi 
of them from a State to a federal court. Some of these causes have al- 
ways existed in some localities in every State, and the remedy for them 
has been found in a change of the place of trial to other localities where 
like impediments to impartial action of the tribunals did not exist. The 
civil rights act, to which reference is made in the section in question, 
was only intended to secure to the colored race the same rights and priv- 
ileges as are enjoyed by white persons ; it was not designed to relieve them 
from those obstacles in the enjoyment of their rights to which all other per- 
sons are subject, and which grow out of popular prejudices and passions. 

"The denial of rights or the inability to enforce them, to which the 
section refers, is, in n\y opinion, such as arises from legislative action of 



19 



Iho State, as, for oxaniple, an act oxcliidiiii;' colored i)er.soi)s from being 
witnesses, inakin;>; contracts, a','([uirin<i- i)ropc'rty, and tlie lilce. Witli re- 
spect to obstacles to tiie enjoyniL^nt of riiilits arisin<i from otber causes, 
persons of the colored race must take their cliances of removing or pro- 
viding against them with the rest of tlic cDmmunity. 

•• Tills cnnclusion is strengthened by the provisions of the 1 Itli amend- 
ment to tl'.e Constitution. The original civil rights act was passed, it is 
tnie, before the adoption of that amendment, but great donl)t Avas cx- 
jiressed as to its validity, and to obtain authority for similar legislation, 
and thus obviate the ol)jections which had been raised to its first section, 
was one of the objects of the amendment. After its adoption the civil 
rights act was re-enacted, and upon the first section of that amendment 
it rests. That section is directed against the State. Its language is that 
' no Slate shall make or enforce any law which shall abridge the privileges 
or immunities of citizens of the United States ; nor shall any State deprive 
any person of life, liherty, or property witliont due process of law, nor 
deny to any person within its jurisdiction tlie equal prt>tection of the 
laws.' As the State, in the administration of its government, acts through 
its executive, legislative, and judicial departments, the inhibition applies 
to them. But the executive and judicial departments only construe and 
enforce thelawsof the State ; the inhibition, therefore, is in effect against 
passing and enforcing any laws which are designed to accomplish the ends 
forbidden. If an executive or judicial officer exeix'ises power with which 
he is not invested l)y law, and does unauthorized acts, the State is not 
responsible for them. Tlie action of tlie judicial officer in such a case, 
where the rights of a citizen under the laws of the United States'are dis- 
regarded, may be reviewed and corrected or reversed by this court; it 
cannot be imputed to the State, so as to make it evidence that she in her 
so\ ereign or legislative capacity denies the rights invaded or refuses to 
allow their enforcement. It is merely the ordinary case of an erro- 
neous ruling of an inferior tribunal. Nor can the unauthorized action 
of an executive officer, impinging upon the rights of the citizen, be taken 
as evidence of her intention or policy so as to charge upon her a denial of 
such rights. 

" If these views are correct, no cause is shown in the petition of the 
prisoners that justified a removal of the prosecutions against them to the 
federal court. No law of Virginia makes any discrimination against per- 
sons of the colored race, or excludes them from the jury. The law re- 
specting jurors provides that ' all male citizens, twenty-one years of age 
and not over sixty, who are entitled to vote and hold office under the con- 
stitution and laws of the State,' with certain exemptions not material to 
the question presented, may be jurors ; and it authorizes an annual selec- 
tion in each county, by the county judge, from the citizens at large, of 
from one to three hundred persons, whose names are to be placed in a 
box, and from them the jurors, grand and jjetit, of the county are to be 
drawn. There is no restriction placed upon the county judge in selecting 



198 

them, except that they shall be such as he shall think ' well qualified to 
serve as jurors, being persons of sound judgment and free from legal ex- 
ception.' The mode thus provided, properly carried out, cannot fail to 
secure competent .jurors. Cei'tain it is that no rights of the prisoners are 
denied by this legislation. The application to the State court, upon the 
refusal of which the peti.ion was presented, was for a venire composed of 
one-third of their race, a proceeding wholly inadmissible in any jury sys- 
tem which obtains in the several States. 

" From the return of the district judge it would seem that in his judg- 
ment the presence of persons of the colored race ou the jury is essential 
to secure to them ' the equal protection of the laws ;' but how this con- 
clusion is reached is not apparent, except upon the general theory that 
such protection can only be aftbrded to parties when persons of the class 
to whicli they belong are allowed to sit on their juries. The correctness 
of this theory is contradicted by every day's experience. Women are 
not allowed to sit on juries ; are they thereby denied the equal protection 
of the laws ? -Foreigners resident in the country are not permitted to 
act as jurors, yet they are protected in their rights equally with citizens. 
Persons over sixty years of age in Virginia are disqualified as jurors, yet 
no one will pretend that they do not enjoy the equal protection of the 
laws. If when a colored person is indicted for a criminal offence it is es- 
sential, to secure to him the equal protection of the laws, that persons of 
his race should be on the jury by which he is tried, it would seem that 
the presence of such persons on the bench should be equally essential, 
where the court consists of more than one judge ; and that if it should 
consist of only a single judge, such protection would be impossible. To 
such an absurd result does the doctrine lead, which the circuit court an- 
nounced as controlling its action. 

" The equality of protection assured by the fourteentli amendment to 
all persons in the State does not imply that they shall be allowed to par- 
ticipate in the administration of its laws, or to hold any of its offices, or 
to discharge any duties of a public trust. The nniversality of the pro- 
tection intended excludes any such inference. Were this not so, aliens 
resident in the country, or temporarily here, of whom there are many 
thousands in each State, would be without that equal protection which 
the amendment declares that no State shall deny to any person within 
its jurisdiction. 

" It follows from these views as to the meaning and purpose of the act 
of Congress that the removal of the prosecution in this case from the 
State to the federal court is unauthorized by it ; and that the order of 
the circuit court to the marshal to take the prisoners from the custody 
of the State authorities is illegal and void. 

" The second objection of the Commonwealth to the legality of the re- 
moval is equally conclusive. The prosecution is for the crime of mur- 
der, committed within her limits by persons and at a place subject to her 
jurisdiction. The offence charged is against her authority and laws, and 



1!>9 

slie alone has tlic rijiht to iiuiuire into its coiuinissioii. ami to puiii.sli tlie 
ot^ender. IMiinlcr is not an ofi'ence against the United States, except 
when committed on an American vessel on the higli seas, or in some port 
or liavtn without the jurisdiction of the State, or in the District of Co- 
lumbia, or in the Territories, or at other places where the national gov- 
ernment has exclusive jurisdiction. The offence within the limits of a 
State, except where jurisdiction has been ceded to the I'nited States, is 
as much beyoud the jurisdiction of their courts as though it had been 
committed on another continent. The prosecution of the olVence in suclj 
a case does not, therefoi'c, arise under the Constitution and laws of the 
United States; and the act of Congress which attempts to give the fed- 
eral courts jurisdiction of it is, to my mind, a clear infraction of the Con- 
stitution. That instrument defines and limits the judicial power of the 
United States. 

" It declares, among other things, that the judicial power shall extend 
to cases in law and equity arising under the Constitution, laws, and trea- 
ties of the United States, and to various controversies to which a State is 
a party ; but it does not include in its enumeration controversies between 
a State and its own citizens. There can be no groiind, therefore, for the- 
assumption by a federal court of jurisdiction of offences against the laws 
of a State. The judicial power granted by the Constitution does not 
cover any such case or controver.sy. And whilst it is well .settled that 
the exercise of the power granted maj* be extended to new cases as they 
arise under the Constitution and laws, the power itself cannot be enlarged 
by Congress. The Constitution creating a government of limited powers 
puts a bound upon those which are judicial as well as those which are 
legislative, which cannot be lawfully passed. 

" This view would seem to be conclusive against the validity of the 
attempted removal of the prosecution in this case from the State court. 
The federal court could not in the iirst instance have taken jurisdiction 
of the offence charged, aud summoned a grand jury to present an indict- 
ment against the accused ; and if it could not have taken jurisdiction at 
iirst. it cannot do so upon a removal pf the i^rosecution to it. The juris- 
diction exercised upon the removal is original and not appellate, as is 
sometimes erroneously asserted, for, as stated hy Chief Justice Mar-shall 
in Marburg- vs. Madison, already, cited, it is of the essence of appellate 
jurisdiction that it revises and corrects proceedings already had. The 
removal is only an indirect mode by which the federal court acc[uires 
original jurisdiction. — (Railroad Co. vs. Whitton, 13 Wall., 287.) 

'' The Constitution, it is to be observed, in the flistribution of the judi- 
cial power, declares that in the cases enumerated in which a State is a 
party, the Supreme Court shall have original jurisdiction. Its framers 
seemed to have entertained great respect for the dignity of a State, v,iiich 
was to remain sovereign at least in its reserved powers, notwithstanding 
the new government, and theretbre provided that when a State should 
have occasion to seek the aid of the judicial power of the new govern- 



200 

ment, or should be brought under its subjection, that power shoukl be 
invoked only in its highest tribunal. It is difficult to believe that the 
wise men who sat in the convention which framed the Constitution and 
advocated its adoption, ever contemplated the possibility of a State being 
required to assert its authority over offenders against its laws in other 
tri])uiKils than those of its own creation, and least of all in an inferior 
tribunal of the new government. I do not think I am going too far in 
asserting that had it been supposed a power so dangerous to the inde- 
pendence of the States, and so calculated to humiliate and degrade them, 
lurked in any of the provisions of the Constitution, that instrument 
would never have been adopted. 

''There are many other difficulties in maintaining the position of 
the circuit court, which the counsel of the accused and the Attorney- 
(ieneral have earnestly defended. If a criminal prosecution of an offen- 
der against the laws of a State can be transferred to a federal court, what 
ofiScer is to prosecute the case ? Is the attorney of the Commonwealth 
to follow the case from his county, or will the United States district 
attorney take charge of it ? Who is to summon the witnesses and pro- 
vide for their fees ? In whose name is judgment to be pronounced ? If the 
accused is convicted and ordered to be imprisoned, who is to enforce the 
sentence? If he is deemed worthy of executive clemency, who is to 
exercise it— the governor of the State, or the President of the United 
States? Can the President pardon for an offence against the State? 
Can tlie governor release from the judgment of a federal court? These 
and other (piestions which might be asked show, as justly observed by 
the counsel of Virginia, the incongruity and absurdity of the attempted 
proceeding. 

" Undoubtedly, if in the progress of a criminal prosecution as Avell as 
in the progress of a civil action, a question arise as to any matter under 
the Constitution and laws of the United States, upon which the defend- 
ant may claim protection, or any benefit in the case, the decision thereon 
may be reviewed by the federal judiciary, which can examine the case so 
far and so far ouly as to determine the correctness of the ruling. If the 
decision be erroneous in that respect it may be reversed and a new trial had. 
Provision for such revision was made in the 25th section of the judiciary 
act of 1789 and is retained in the Revised Statutes. That great act was 
penned by Oliver Ellsworth, a member of the convention which framed 
the Constitution, and one of the early chief justices of this court. It 
may be said to reflect the views of the founders of the Kepublic as to the 
proper relations between*the federal and State courts. It gives to the fed- 
eral courts the ultimate decision of federal questions without infringing 
upon the dignity and independence of the State courts. By it harmony 
between them is secured, the rights of both federal and State governments 
maintained, and every privilege and immunity which the accused could 
assert under either can be enforced." 



201 

The Ehufion O/.^r,^' from Oliio and Mari/hniil : Ex-parf,' 

Clarke, 'rial E.r-p'irte Siehold. 
Tin' Coiistitntion declares that 'Mlie tiiiios, pUu-os, and 
iiiamicro!" holding elections for senators and rcprc-sfiita- 
tives shall be prescribed in earh Slate by the legislature 
thereof; but the Congress may, at any time, by law, make 
or alter such regulations, exeept as to the jilaccsoi' cdioosing 
senators." Congress is tlius authorized to make sueh reg- 
ulations itself or to alter those prescribed by tlie States, 
the making or alteration end)ra('ing every pai-ticular of 
time, place, and manner except the place of idioosing sen- 
ators. The regulations, however, can only extend to the 
designation of the mode in which the will of the voter 
shall he expressed and ascertained. The power is not 
lodged in Congress to prescribe the qualifications of voters; 
that matter is left to the States, subject to the provision 
that the electors of representatives in Congress must have 
the qualifications required of electors of the most numer- 
ous branch of the State legislature, and the provision of 
the fifteenth amendment relating to the sufirage of tlie 
colored race. Whatever is involved in the nvinncr of 
holdhi'i Congress can prescribe, and it is possible that so 
far as the election of representatives is concerned this may 
embrace all necessary provisions for ascertaining the names 
of the voters — thus sanctioning a registry law- — and the ap- 
pointment of officers of election to collect the votes and 
announce the result. So far as the election of senators is 
concerned, whatever regulations are prescribed, they must 
be such as a legislative Itody can conform to without im- 
pairment of its independent functions. 

The constitutional provision was adopted in order that 
the general government might have the means of its own 
preservation against a possible dissolution from the re- 
fusal or neglect of the States to provide for the election of 
representatives. To obtain this end in case of hostile 
action of the States, Congress must be able to authorize 
all necessary measures to ensure the holding of an election. 



202 

Xo one disputes this doctrine. The dispute bet\Yeen 
-the two great [larties of the country u^ion the election 
laws of Congress has not arisen from any exercise of the 
powers conferred by the clause of the Constitution in 
question, for no regulations have been adopted by Con- 
gress as to the holding of the elections, except as to the 
times of electing representatives and senators, and in case 
of senators by requiring the separate and joint action of 
the two houses of of the State legislatures. These regula- 
tions require no interference in their execution with the 
officers of the State. The dispute has arisen from the 
attempt of Congress to enforce the regulations prescribed 
by the State and to exercise a supervision over its officers, 
interfering with their action, and endeavoring to arrest 
and punish them for alleged violations of State laws. 

Previous to the election laws of Congress it was sup- 
posed to be a well-established doctrine that State officers 
were responsible only to the State for the manner in which 
they discharged their duties under State laws ; tliat when- 
ever the federal government desired to enforce by coer- 
cive measures and punitive sanctions the performance of 
a dut}^ wdiich it could prescribe, it was bound to appoint 
its own officers, upon whom its power could be exerted; 
and that if it entrusted the performance of such duty to 
officers of a State, it was obliged to take their agency on 
the terms which the State permitted. In other words, 
although Congress could l)y law presciibe I'cgulations for 
the election of representatives, and appoint its own oliicers 
for their execution, if it entrusted their execution to State 
officers it must take their agency upon the conditions 
which the State might exact. If on the other hand regu- 
lations were prescribed by the State, it was for the officers 
of the State to enforce them, and not the officers of the 
United States. 

Again, regulations for the election of State officers can 
only be prescribed by the State, and anj^ regulations by 
Congress for the election at the same time of representa- 



203 

tivos in ConiiToss must lie so iVaniofl as not to interfere 
with the Tree elerlion of State oifu-crs utKh'r tlie State 
hiws. Complaint has been made that hy the hiws of 
C\)nii-ress that freedom of election was invaded. 

This subject came up for consideration before the Su- 
preme Court of the United States at the October term, 
1870, At an election held in the First Congressional Dis- 
trict of Oliiojin October, 1878, at which a rei)resentative in 
Congress was voted for, one Clarke was appointed under the 
laws of the State, and acted as a judge of election at a pre- 
cinct in one of the wards of Cincinnati. At an election held 
in the Fourth and Fifth Congressional Districts of Mary- 
land, in November, 1878, at which a like representative 
was voted for, one Siebold and four others were appointed 
under the laws of the State and acted as judges of election 
at diti'erent precincts in the city of Baltimore. For al- 
leged misconduct as such otficers of election these }iarties 
were indicted in the Circuit Court of the United States for 
their respective districts, tried, convieted, and sentenced 
to imprisonment for twelve months, and in some of the 
cases also to pay a tine. Clarke was charged in the in- 
dictment with having violated a law of the State of Ohio. 
The parties from Maryland were charged with having pre- 
vented federal officers from interfering with them and su- 
pervising their action in the execution of the laws of that 
State. All of them petitioned the Supreme Court for 
writs of hdhciis rorpi'^', praying that they might be released, 
on the alleged ground that their imprisonment was unlaw- 
ful, in that the acts of Congress under whii-h they were 
prosecuted were unconstitutional and void. 

The cases were elaborately argued by George Iloadly, 
of Cincinnati, for the petitioner from Ohio ; by Bradley 
Johnson, of Baltimore, for the petitioners from Maryland, 
and by the Attorney-General of the United States on the 
other side. 

The Supreme Court held that the acts of Congress were 
valid, and that the parties were rightly indicted and con- 



204 

victed. They, tliei'efore, refused the wi-its. Judii'es CHfi:V)rd 
and Field dissented from the jiidgnuMit, JudiiX" Field rend- 
ing a dissenting opinion. In it he eoufined himself prin- 
cipally to the case of the petitioner from Ohio, as the 
principle which governed that case dis[)0sed of all of them; 
for, as he said, if Congress could not punish an officer of 
a State for the manner in which he discharged his duties 
under her laws, it could not subject him to the supervision 
and control of others in the [lei'formance of such duties, 
and punish him for resisting their interference. In the 
cases from Maryland, it appeared that the laws ot the State 
under which the petitioners were appointed judges of elec- 
tion, and the registration of voters for the election of 1878 
was made, were not in existence when the act of Congress 
was passed providing for the appointment of supervisors 
to examine the registration and scrutinize the lists, and of 
special deputy mai'shals to aid and protect them. The act 
of Congress was [)assed in 1871, and re-puhlislied in the 
Revised Statutes, which are declarator}' of the law in force, 
December 1st, 1873. The law of Maryland, under which 
the registration of voters was had, was enacted in 1874, 
and the law under which the judges of election were ap- 
pointed was enacted in 187(:), and these judges were required 
to possess ditterent qualitications from those required of 
judges of election in 1871 and 187->. 

The act of Congress upon which the indictment of the 
petitioner of Ohio was founded is contained in section 
5,515 of the Revised Statutes, which declares that " every 
officer of an election, at which any representative or del- 
egate in Congress is voted for, whether such officer of 
election be appointed or created by or under any law^ or 
authority of the United States, or by or under any State, 
territorial, district, or municipal law or authority, who ne- 
glects or i-efuses to perform any duty in regard to such 
election required of him by any law^ of the United States, 
or of any State or Territory thereof ; or who violates any 
duty so imposed; or who knowingly does any acts thereby 



20;> 

nnantli(H'i/iMl, willi iiitciu to afi't-ct any siidi t'lrctioii orllic 
rosult iluTc'oi', . . . sluill 1h' punislu'd as pi-cKcriLcMr' 
in a [iri'xioiis siH-tioii, that is, liy a I'nu- not exceeding one 
tliousaiul dollars, or in4»risonnient not more than one year, 
or hy hoth. 

The provisit):is of the aet of Congress relating to the 
appointment o! su[»ei'viso]-8 of election, ioi- resisting and 
interfering with whom the petitioners from Maryland were 
convicted, authorized the supervisors to supervise tlie ac- 
tion of the State officers fi'oni the registration of voters 
down to tlie close of the polls on the day of election; re- 
quired the marshals to aid and protect them; ])rovided for 
the appointment of special deputy marshals in towns and 
cities of over twenty thousand inhahitants; and invested 
them witli a power to arrest and take into custody persons 
without process, more extended than has ever before been 
entrusted to any one in this country in time of peace. 

In his dissenting opinion Judge Field, speaking for him- 
self and associate, said as follows: 

" In wl);it I have to say I shall endeavor to show; 1st, that it is not 
competent for Congress to punish a State officer for the manner in Avhich 
he discharges duties imposed upon him by the laws of the State, or to 
subject him in the performance of such duties to the supervision and 
control of others, and punish him for resisting their interference : and, 
2d, that it is not competent for Congress to make the exercise of its puni- 
tive power dependent ui)on the legislation of the States. 

"There is no doubt that Congress may adopt a law of a State, but in 
that case the adopted law must be entbrced as a law of the United States. 
Here there is no pretence of such adoption. In the case from Ohio it is 
for the violation of a State law, not a law of the United States, that the 
indictment was found, The judicial power of the United States does not 
extend to a case of that kind. The Constitution defines and limits that 
power. It declares that it shall extend to cases in law and equity arising 
under the Constitution, the laws of the United States, and treaties made 
under their authority ; to cases affecting ambassadors, other public min- 
isters and consuls; to cases of admiralty and maritime jurisdiction, and 
to various controversies to which t^he United States or a State is a party, 
or between citizens of different States, or citizens of the same State claim- 
ing lands under grants of different States, or between citizens of a State 
and any foreign State, citizens, or subjects. The term controversies as 
here used refers to such only as are of a civil as distinguished from those 



206 

of a criminal nature. Tlie judicial power thus delined may be applied to 
new cases as they arise under the Constitution and laws of the United 
States, but it cannot be enlarged by Congress so as to embrace cases not 
enumerated in the Constitution. It has been so held by this court from 
the earliest period. It was so adjudged in 1803 in Marbury vs. Mad- 
ison, and the adjudication has been affirmed in numerous instances 
since. This limitation upon Congress would seem to be conclusive of 
the case from Ohio. To authorize a criminal prosecution in the fed- 
eral courts for an offence against a law of a State, is to extend, the judi- 
cial power of the United States to a case not arising under the Con- 
stitution or laws of the United States. 

"But there is another view of this subject which is equal I3' conclusive 
against the jurisdiction of the federal court. The act of Congress asserts 
a power inconsistent with, and destructive of, the independence of the 
States. The right to control their own officers, to prescribe the duties 
they shall perform, without the supervision or interference of any other 
authority, and the penalties to which they shall be subjected for a viola- 
tion of duty is essential to that independence. If the federal government 
can punish a violation of the laws of the State, it may punish obedience 
to them, and graduate the punishment according to it^ own judgment of 
their propriety and wisdom. It may thus exercise a control over the 
legislation of the States subversive of all their reserved rights. However 
large the powers conferred upon the government formed by the Constitu- 
tion, and however numerons its restraints, the right to enforce their own 
laws by such sanctions as they may deem appropriate is left, where it 
was originall}% with the States. It is a right which has never been sur^ 
rendered. Indeed a State could not be considered as independent in any 
matter, with respect to which its officers, in the discharge of their duties, 
could be subjected to punishment by any external authority ; nor in 
which its officers, in the execution of its laws, could be subject to the 
supervision and interference of others. 

" The invalidity of coercive measures by the United States, to compel 
an officer of a State to perform a duty imposed upon him by a law of 
Congress, is asserted in explicit terms in the case of The Commonwealth 
of Kentucky vs. Dennison. — (24 How., 66.) The Constitution declares 
that ' a person charged in any State with treason, felony, or other crime, 
who shall flee from justice, and be found in another State, shall, on de- 
mand of the executive authority of the State from which he tied, be de- 
liveied up to be removed to the State having jurisdiction of the crime.' 
And the act of Congress of 1793, to give effect to this clause, made it the 
duty of the executive authority of the State, upon the demand mentioned, 
and the production of a properly authenticated copy of the indictment or 
affidavit charging the person demanded with the commission of treason, 
felony, or other crime, to surrender the fugitive. The governor of Ohio 
having refused upon a proper demand to surrender a fugitive from jus- 
tice from Kentucky, the governor of the latter State applied to this 



207 

court lor a UKUKlanius lo (•(iiniicl the pcrrDnnancc ol'tliat duty. P.nl llic 
court, after observin<; that, thoiiiih tlif words 'il shall he the duty,' iu 
ordinary legislation ini]ilicd the assertion of the jiowcr to eoniniand and 
to eausc oludii'iice. said, that lookino to thr suhj. el -matter of tlie law 
and -tlie relations which the United i^tates and the sev.-ral States hear 
to eaeli other," it was of opinion that the words were not used as manda- 
tory and compulsory, but as declaratory of the moral duty created, when 
Congress liad provided the mode of carrying the provision into execution. 
'The act does not provide," the court added, ' any means to compel the 
execution of this duty, nor inflict any punishment for neglect or refusal 
on the part of the executive of the State; nor is there any clause or })ro- 
Tision in the Constitution which arms the government of tlu- United 
States with this power. Indeed, such a power would place every State 
under the control and dominion of the general government, even in the 
administration of its internal concerns and reserved rights. And we 
think it clear that the federal government, under the Constitution, has 
no power to impose on a State officer, as such, any duty whatever, and 
compel him to perform it ; for if it possessed this power it might overload 
the officer with duties which would fill up all his time, and disable him 
from performing his obligations to the State, and might impose on him 
duties of a character incompatible with the rank and dignity to which 
he was elevated by the State. It is true that Congress may authorize a 
particular State officer to perform a particular duty ; but if he declines 
to do so, it does not follow that he may be coerced or punished for his 
refusal. And we are very far from supposing that in using this word 
' duty,' the statesmen who framed and pa.ssed the law, or the President 
who approved and signed it, intended to exercise a coercive poAver over 
State officers not warranted by the Constitution.' And again : ' If the 
governor of Ohio refuses to discharge this duty, there is no power dele- 
gated to the general government, either through the judicial department 
or any other department, to use any coercive means to compel him.' 

" If it be incompetent for the federal government to enforce, by coer- 
cive measures, the performance of a plain dut,y imj)osed by a law of Con- 
gress upon the executive officer of a State, it would seem to be equally 
incompetent for it to enibrco, hj similar nieasures, the performance of a 
duty imposed upon him by a law of a State. If Congress cannot impose 
upon a State officer, as such, the performance of any duty, it would seem 
logically to follow that it cannot subject him to punishment lor the neg- 
lect of such duties as the State may impose. It cannot ])unish for the 
non-performance of a duty which it cannot prescribe. It is a contradic- 
tion in terms to say that it can inflict punishment for disobedience to an 
act, the performance of which it has no constitutional power to command. 

" I am not aware that the doctrine of this case, which is so essential to 
the harmonious working of the State and federal governments, has ever 
been ciiialitied or departed from by this court until the recent decisions 
in the Virginia cases, of which I shall presently speak. It is true that, 



208 

at an early period in the history oftlie government, laws were passed by 
Congress anthoriziug State courts to entertain jurisdiction of proceedings 
by the United States, to enforce penalties and forfeitures under the reve- 
nue laws, and to hear allegations, and take proofs if applications were 
made for their remission. To these laws reference is made in the Ken- 
tucky case, and the court observes, that the powers, which they conferred, 
were for some years exercised by the State tribunals without objection, 
until in some of the States their exercise was declined because it inter- 
fered with and retarded the performance of duties which properly be- 
longed to them as State courts ; and in other States because doubts arose 
as to the power of the State courts to inflict penalties and forfeitures for 
offences against the general government, unless specially authorized to do 
so by the States ; and that the co-operation of the States in those cases 
was a matter of comity which the several sovereignties extended to one 
another for their mutual benefit, and was not regarded by either party as 
an obligation imposed by the Constitution. 

" It is to be observed that by the Constitution the demand for the sur- 
render of a fugitive is to be made by the executive authority of the State 
from which he has fled, but it is not declared upon whom the demand 
shall be made. That was left to be determined by Congress, and it 
provided that the demand should be made upon the executive of the 
State where the fugitive was found. It might have employed its own 
agents, as in the enforcement of the fugitive slave law, and compel them 
to act. But in both cases, if it employed the officers of the State it could 
not restrain nor coerce them. 

" Whenever, therefore, the federal government, instead of acting through 
its own officers, seeks to accomplish its purposes through the agency of 
officers of the States, it must accept the agency witli the conditions upon 
wliich the officers are permitted to act. For example, the Constitution in- 
vests Congress with the 'power to establish a uniform rule of naturaliza- 
tion ;' and this power, from its nature, is exclusive. A concurrent power 
in the States would prevent the uniformity of regulations required on-the 
subject. — (Chirac vs. Chirac, 2 Wheaton, 259; The Federalist, No. 42.) 
Yet Congress, in legislating under this power, has authorized courts of 
record of the States to receive declarations under oath by aliens of their 
intention to become citizens, and to admit them to citizenshii) after a 
limited period of residence, u^ion satisfactory proof as to character and 
attachment to the Constitution. But when Congress prescribed the con- 
ditions and proof upon which aliens might, by the action of the State 
courts, become citizens, its power ended. It could not coerce the State 
courts to hold sessions for such applications, nor fix the time when they 
.should hear the applicants, nor the manner in which they should admin- 
ister the required oaths, nor regulate in any way their procedure. It 
could not compel them to act by mandimus from its own tribunals; nor 
subject their judges to criminal prosecution for th^ir non-action. It could 
accept the agency of those courts only upon such terms as the States 



:2(ili 

should pr('sci'il)('. Tlic suinc tiling is true in all cases where the ajijency 
of State officers is used ; and this doctrine applies with special force to 
judges of elections at which numerous State officers are chosen at the 
same time with representatives to Congress. So far as the election of 
State officers and the registration of voters for their election are con- 
cerned, the federal government has confessedly no authority to interfere. 
And yet the supervision of and interference with the State regulations, 
sanctioned by the act of Congress, when representatives to Congress are 
voted for, amount ])ra<;tical]y to a supervision of and an interference with 
the electiouof State officers, and constitute a jjlain encroachment upon the 
rights of the States, which is well calculated to create irritation towards 
the federal government, and disturb the harmony that all good and pa- 
triotic men should desire to exist between it and the State governments. 

" It was the purpose of the framers of the Constitution to create a 
government which could enforce its own laws, through its own oiiicers 
and tribunals without reliance upon those of the States, and thus avoid 
the principal defect of the government of the Confederation: and they 
fully accomplished their purpose, for, as said by Chief Justice Marshall in 
the McCullough case, ' No ti'ace is to be found in the Constitution of an 
intention to create a dependence of the federal government on the govern- 
ments of the States for the execution of the great powers assigned to it. 
Its means are adecxuate to its ends, and on those means alone was it ex- 
pected to rely for the accomplishment of its ends.' When, therefore, the 
federal government desires to compel by coercive measures and punitive 
sanctions the performance of any duties devolved upon it by the Consti- 
tution, it must appoint its own officers and agents, upon whom its power 
can be exerted. If it sees lit to entrust the performance of such duties 
to officers of a State, it must take their agency, as already stated, upon 
the conditions which the State may impose. The co-op)erative scheme to 
which the majority of the court give tlieir sanction, by which the gen- 
eral government may create one condition and the States another, and 
each make up for and supplement the omissions or defects in the legisla- 
tion of the other, touching the .same subject, with its separate penalties 
for the same oifence, and thus produce a harmonious mosaic of statutory 
regulation, does not appear to have struck the great jurist as a feature in 
our system of goNernment or one that had been sanctioned by its thund- 
ers. 

" It is true that since the recent amendments of the Constitution there 
has been legislation by Congress asserting, as in the instance before us, 
a direct control over State otficers, which previously was never supposed 
to be compatible with the independent existence of the States in their 
reserved ijowers. Much of that legislation has yet to be brought to the 
test of judicial examination ; and until the recent decisions in the Vir- 
ginia cases, I could not have believed that the former carefully considered 
and repeated judgments of this court upon provisions of the Constitution, 
and upon the general character and pui'poses of that instrument, would 
14 



210 

have been disregarded and overruled. These decisions do indeed, in my 
judgment, constitute a new departure. They give to the federal govern- 
ment the power to strip the States of the right to vindicate their author- 
ity in their own courts against a violator of their laws, when the trans- 
gressor happens to be an officer of the United States, or alleges that he is 
denied or cannot enforce some right under their laws. And they assert 
for the federal government a power to subject a judicial officer of a State 
to iHinishment for the manner in which he discharges his duties under her 
laws. The power to punish at all existing, the nature and extent of the 
punishment must depend upon the will of Congress, and may be carried 
to a removal from office. In my judgment, and I say it without intend- 
ing any disrespect to ray associates, no such advance has ever before been 
made toward the conversion of our federal system into a consolidated and 
centralized government. I cannot think that those who framed and ad- 
vocated, and the States which adopted the amendments, contemplated 
any such fundamental change in our theory of government as those de- 
cisions indicate. Prohibitions against legislation on particular subjects 
previously existed, as, for instance, against passing a bill of attainder and 
an ex post facto law, or a law impairing the obligation of contracts ; and 
in enforcing those prohibitions it was never supposed that criminal pros- 
ecutions could be authorized against members of the State legislature for 
passing the prohibited laws, or against members of the State judiciary 
for sustaining them, or against executive officers for enforcing the judi- 
cial determinations. Enactments prescribing such prosecutions would 
have given a fatal blow to the independence and autonomy of the States. 
So of all or nearly all the prohibitions of the recent amendments the 
same doctrine may be a.sserted. In few instances could legislation by 
Congress be deemed appropriate for their enforcement, which should pro- 
vide for the annulment of in'ohibited laws in any other way than through 
the instrumentality of an appeal to the judiciary, when they impinged 
upon the rights of parties. If in any instance there could be such legis- 
lation authorizing a criminal prosecution for disregarding a prohibition, 
that legislation should define the offence and declare the punishment, 
and not invade the independent action of the different departments of 
the State governments within their ai>propriate spheres. Legislation by 
Congress can neither be necessary nor appropriate which would subject to 
criminal prosecution State officers for the performance of duties pre- 
scril>ed by State laws, not having for their object the forcible subversion 
of the government. 

'■ The clause of the Constitution, upon which reliance was placed by 
counsel, on the argument, for the legislation in question, does not, as it 
seems to me, give the slightest support to it. That clause declares that 
' the times, places, and manner of holding elections for senators and rep- 
resentatives shall be prescribed in each State by the legislature thereof; 
but the Congress may, at any time, by law, make or alter such regula- 
tions, except as to the places of choosing senators.' The power of Con- 



{.'iTssllius conlVMied is ritlicr to alter tlie icjiulations i)resoril)cd by tlic 
State or to make new ones; the alteration or new creation enibraeinji 
every partienlar of time, i)lace. and manner, exeej)! the. place of choosing 
senators. But in neitlier mode nor in any resiiect has Congress inter- 
fered with the regnlations i)res(ril)ed by the leiiislatnre of Ohio, or with 
those prescribed by the legiskiture of Maryhxnd. It has not altered them 
or made new ones. It has simply provided for (he ai)p()intment of oHi- 
i-ers to snpervise tlie execution of the State laws, and of marshals to aid 
and i)rote(t them in such supervision, and has added a new penalty for 
disolirying those laws. This is not euibrciug an altered or a new regu- 
lation. NNhatever Congress may properly do touching the regulations, 
one of two things must follow ; either the altered or the new regulation 
remains a State law, or it bec(mies a law of Congress. If it remain a 
State law, it must, like other laws of the State, be enforced through its 
instrumentalities and agencies, and with the penalties which it may see 
tit to f)rescribe, and without the supervision or interference of federal of- 
ficials. If, on the other hand, it become a law of Congress, it must be 
carried into execution by such officers and with such sanctions as Con- 
gress may designate. But as Congress has not altered the regulations for 
the election of representatives prescribed by the Legislature of Ohio or 
of Maryland, either as to time, place, or manner, nor adopted any regu- 
lations of its own, there is nothing for the federal government to enforce 
on the subject. The general authority of Congress to pass all laws nec- 
essary to carry into execution its granted powers, supposes some attempt 
to exercise those powers. There must, therefore, be some regulations 
made by Congress, either by altering those prescribed by the State, or by 
adopting entirely new ones, as to the times, places, and manner of hold- 
ing elections for representatives, before any incidental powers can be in- 
voked to compel obedience to them. In other words, the implied power 
cannot be invoked until some exercise of the express power is attempted, 
and then only to aid its execution. There is no express power in Con- 
gress to enforce State laws by imposing penalties for disobedience to 
them; its punitive power is only implied as a necessary or proper means 
of enforcing its own laws ; nor is there any power delegated to it to su- 
pervise the execution by State officers of State laws. 

"If this view be correct, there is no power in Congress, independently 
of all other considerations, to authorize the appointment of supervisors 
and other officers to superintend and interfere with the election of repre- 
sentatives under the laws of Ohio and Maryland, or to annex a penalty 
to the violation of those laws, and the action of the circuit courts was 
Avithout jurisdiction and void. The act of Congress in question was 
})a.ssed, as it seems to me, in disregard of the object of the constitutional 
provision. That was designed simply to give to the general government 
the means of its own preservation against a possible dissolution from the 
hostility of the States to the election of representatives, or from their 
neglect to provide suitable means ibv holding such elections. This is 



212 

evident from the language of its advocates, some of them members of the 
convention, when the Constitution was presented to the country for adop- 
tion. In commenting upon it in his report of the debates, Mr. Madison 
said, that it was meant ' to give the national legislature a power not only 
to alter the jn-ovisions of the States, but to make regulations, in case the 
States should fail or refuse altogether:— (EUiotVs Debates, 402.) And in 
the Virginia convention called to consider the Constitution, he observed 
that ' it was found Impossible to fix the time, place, and manner of the 
election of representatives in the Constitution. It was found necessary 
to leave the regulation of these, in the first place, to the State govern- 
monts, as being best acquainted Avith the situation of the people, subject 
to the control of the general government, in order to enable it to produce 
uniformity, and prevent its own dissolution.'' — (3 Elliott's Debates, 367.) 
And in the Federalist. Hamilton said, that the propriety of the clause in 
question rested ' upon the evidence of the plain proposition that ever^^ 
government should contain in itself the means of its own preservation.' 
" Similar language is found in the debates in conventions of the other 
States and in the writings of jurists and statesmen of the period. The 
conduct of Rhode Island was referred to as illustrative of the evils to be 
avoided. That State was not represented by delegates in Congress for 
years, owing to the character and views of the i)revailing party; and 
Congress was often embarrassed by their absence. The same evil, it was 
urged, might result from a similar cause, and Congress should, therefore, 
possess the power to give the people an opportunity of electing represen- 
tatives if the States should neglect or refuse to make the necessary regu- 
lations. 

'■ In the conventions of several States which ratified the Constitution, 
an amendment was pi-oposed to limit in express terms the action of Con- 
gress to cases of neglect or refusal of a State to make proper provisions 
for congressional elections, and Avas supported by a majority of the thir- 
teen States; but it was finally abandoned upon the ground of the great 
improbability of congressional interference so long as the States performed 
their duty. When Congress does interfere and. provide regulations, the 
duty of rendering them effectual, so far as they may require affirmative 
action, will devolve solely upon the federal government. It will then be 
federal power which is to be exercised, and its enforcement, if promoted 
by punitive sauctions, must be through federal officers and agents; for, 
as said by Mr. Justice Stary in Prigg vs. Pennsylvania. ' The national 
government, in the absence of all positive provisions to the contrary, is 
bound, through its own proper department, legislative, judicial, or execu- 
tive, as the case may require, to carry into effect all the rights and duties 
imposed upon it by the Constitution.' If State officers and Stat§ agents 
are employed, they must be taken, as already said, with the conditions 
upon which the States may permit them to act, and without responsibil- 
ity to the federaj authorities. The power vested in Congress is to alter 
the regulations prescribed by the legislatures of the States, or to make 



new ones, as to thi^ times, jilaees, and manner of liohl'nuj the elections. 
Tliose whieh relate to the times and ])laces will seldom recjnire any allirm- 
ative action beyond their designation. And reiiulations as to the inanmr 
of hohliny them cannot extend beyond the desij;nation of the nuxh' in 
whieh the will of the voters shall be cxiinsscd and ascertained. The 
power does not antiioii/.e ('oniiress to detennine who .shall participate in 
the election, or what siiall i>e the qualilicat ions of voters. These are mat- 
ters not pertaining to or involved in the manner of holding the election, 
and their regnlation rests exclu.sively with the States. The only restric- 
tion upon them with respect to these matters is found in the provision 
that the electors of representatives in Congress shall have the qualitica- 
tions required for electors of the most numerous branch of the State leg- 
islature, and the provision relating to the suffrage of the colored race. 
And whatever regulations Congress may prescribe as to the manner of 
holding the election for representatives must be so framed as to leave the 
election of State officers free, otherwise they cannot l:e maintained. In 
one of the niunbers of the Federalist, Mr. Hamilton, in defending the 
adoption of the clause in the Constitution, uses this language : ' Suppose 
an article had been introduced into the Con.stitutiou empowering the 
United States to regulate the elections for the particular States, would 
any man have hesitated to condemn it, both as an unwarrantable trans- 
position of power, and as a premeditated engine for the destruction of the 
State governments ? The violation of principle in this case -would have 
required no comment.' By the act of Congress sustained by the court an 
interference with State elections is authorized almost as destructive of 
their control by the States as the direct regulation whieh he thought no 
man would hesitate to condemn. 

■'The views expressed derive further support from the fact that the 
constitutional provision applies equally to the election of senators, excejjt 
as to the place of choosing them, as it does to the election of representa- 
tives. It M ill not be pretended that Congress could authorize the ap- 
pointment of supervisors to examine the roll of members of State legi.s- 
latures and pa.ss upon the validity of their titles, or to scrutinize the bal- 
loting for senators ; or could delegate to special deputy marshals the power 
to arrest any member resisting and repelling the interference of the su- 
pervisors. But if Congress can ^authorize such officers to interfere with 
the judges of election apjjointed under State laws in the discharge of their 
duties when representatives are voted for, it can authorize such officers to 
interfere with members of the State legislatures when senators are voted 
for. The language of the Constitution conferring power upon Congress 
to alter the regulations of the States, or to make new regulations on the 
.subject, is as applicable in the one case as in the other. The objection to 
such legislation in both cases is that State officers are not responsible to 
the federal government for the manner in which they perform their du- 
ties, nor subject to its control. Penal sanctions and coercive measures by 
federal law cannot be enforced against them. Whenever, as in some in- 



214 

stances is the case, a State officer is required by the Constitution to per- 
form a duty, the rnanner of which may be prescribed by Congress, as in 
the election of senators by members of State legislatures, those officers 
are responsible only to their States for their official conduct. The federal 
government cannot touch them. Tliere are remedies for their disregard 
of its regulations, which can be applied without interfering with their 
oificial character as State officers. Thus if its regulations for the election 
of senators should not be followed, the election had in disregard of them 
might be invalidated ; but no one, however extreme in his views, would 
contend that in such a case the members of the legislature could be sub- 
jected to criminal prosecution for their action. With respect to the elec- 
tion of representatives, so long as Congress does not adopt regulations of 
its own and enforce them through federal officers, but permits the regula- 
tions of the States to remain, it must depend for a compliance with them 
upon the fidelity of the State officers and their responsibility to their own 
government. All the provisions of the law, therefore, authorizing super-' 
visoi's and marshals to interfere with those officers in the discharge of 
their duties, and providing for criminal prosecutions against them in the 
federal courts, are, in my judgment, clearly in conflict with the Constitu- 
tion. The law was adopted, no doubt, with the object of preventing 
frauds at elections for members of Congress, but it does not seem to have 
occurred to its authors that the States are as much interested as the gen- 
eral government in guarding against frauds at those elections and in main- 
taining their purity, and, if possible, more so, as their principal officers 
are elected at the same time. If fraud be successfully perpetrated in any 
case, they will be the first and the greatest sufferers. Tliey are invested 
with the sole power to regulate domestic affairs of the highest moment 
to the prosperity and happiness of their people, affecting the acci(uisition, 
enjoyment, transfer, and descent of property ; the marriage relation, and 
the education of children ; and if such momentous and vital concerns 
liiay be wisely and safely entrusted to them, I do not think that any ap- 
prehension need be felt if the supervision of all elections in their respec- 
tive States should also be left to them. 

" Much has been said in argument of the power of the general govern- 
ment to enforce its own laws, and in so doing to preserve the peace, 
though it is not very apparent what pertinency the observations have to 
the questions involved in the cases before us. No one will deny that in 
the powers granted to it the general government is supreme, and that, 
upon all subjects within their scope, it can make its authority respected 
and obeyed throughout the limits of the Republic ; and that it can repress 
all disorders and disturbance which interfere with the enforcement of its 
laws. But I am unable to perceive in this fact, which all sensible men 
acknowledge, any cause for the exercise of ungranted power. The greater 
its lawful power, the greater the reason for not usurping more. Unrest, 
disquiet, and disturbance will always arise among a people, jealous of 
their rights, from the exercise by the general government of powers which 
they have reserved to themselves or to the States. 



215 

" My second proposition i.s that it is not ronipctont for Congress to make 
the exercise of its punitive power dejtcndent ui)on the legishition of th*^ 
States. The act, upon which the indictment of the jjctitioner from Ohio 
is founded, makes the neglect or violatidu of a duty prescribed by a hiw 
oi' the State in regard to an election at wiiicli a representative in Con- 
gress is voted for, a criunual otrincc. It docs not say that the neglect or 
disregard of a duty prcserihcd by any r.ris/iin/ law shall t-oustitule such 
an oll'ence. it is the neglect or disregard of (Oiij dniij prescribed by (Oiy 
law of the State, present or future. The act of Congress is not changed in 
terms ^vitli the changing laws of the State ; but its penalty is to be 
shifted with the shifting humors of the State legislatures. I cannot 
think that such punitive legislation is valid which varies, not by direc- 
tion of the federal legislators, upon new knowledge or larger experience, 
but 1)y the direction of some external authority which makes the same 
act lawful in one State and criminal in another, not according to the 
views of Congress as to its propriety, but to those of another body. The 
Constitution vests all the legislative power of the federal government in 
Congress ; and from its nature this power cannot be delegated to others, 
except as its delegation may be involved by the creation of an inferior 
local government or department. Congress can endow- territorial govern- 
ments and municipal corporations with legislative powers, as the posses- 
sion of such powers for certain purposes of local administration is indis- 
pensable to their existence. So, also, it can invest the heads of depart- 
ments and of the army and navy with power to prescribe regulations to 
enforce discipline, order, and efficiency. Its possession is implied in their 
creation ; but legi-slative power over subjects which come under the im- 
mediate control of Congress, such as defining ofteuces against the United 
States, and prescribing punishment for them cannot be delegated to any 
other government or authority. Congress cannot, for example, leave to 
the States the enactment of laws and restrict the United States to their 
enforcement. There are many citizens of the United States in foi-eign 
countrres, in Japan, China, India, and Africa. Could Congress enact that 
a crime against one of those States should be punished as a crime against 
the United States ? Can Congress abdicate its functions and depute foreign 
countries to act for it ? If Congress cannot do this with respect to offences 
against those States, how can it enforce penalties for otienees against 
any other States, though they be of our own Union ? If Congress could 
depute its authority in this way ; if it could say that it will punish as 
an otfence what another power enacts as such, it might do the .same thing 
with respect to the commands of any other authority, as, for example, of 
the President or the head of a department. It could enact that wiiat the 
President proclaims shall be law ; that w hat he declares to Ije olfences 
shall be puni.shed as such. Surely no one will go so far as this, and yet 
I am vinable to see the distinction in principle between the existing law 
and the one I suppose, which seems so extravagant and absurd. 

" I will not pursue the subject further, but those who deem this ques- 
tion at all doubtful or difficult, may find something worthy of thought 



216 

in the opiuioiiS of the Court of Appeals of New York and of the supreme 
courts of several other States, where this subject is treated with a full- 
ness and learning, which leaves nothing to be improved and nothing to 
be added." 



CORPOKATIOXS. — CASEt? RELATING T(3 THEIR PoWERS AND 

Liabilities, and their Subjection to the Control of 
THE State. 

Cor|i()ratioii.s of all kinds, puhlic and private, foreign and 
domestic, commercial, benevolent, and religious, have been 
the frequent subject of consideration liy the Supreme Court, 
Their powers and lialuHties, their creation, amendment, 
and dissolution; how far they arc to 1)e regarded as con- 
tracts within tlie prolnl)ition of the Constitution against 
State impairment, and how far they arc subject to tlie con- 
trol of the State, have been treated in numerous cases 
with exhaustive fullness. Every judge on the bench has 
given opinions in some of the cases. Judge Field has 
given opinions in several of them; and, among otiiers, in 
the following : Paul vs. Virginia (8 Wallace, 168) ; Marsh 
vs. Fidton County (10 Wallace, 676); Tomhnson vs. Jes- 
sup (15 Wallace, 4o4); Minot vs. The Philadelphia, Wil- 
mington and Baltimore Railroad Company (18 Wallace, 
206); Board of Commissioners of Tippecanoe County vs. 
Lucas, Treasurer (93 IT. S., 108); Broughton vs. Pensa- 
cola (Ibid., 266); and United States vs. New Orleans (98 
IT. S., 381). In the case of The Pensacola Telegraph 
Company vs. The Western Union Telegraph Company he 
wrote a dissenting opinion (96 U. S., 14), 

In Paul vs. Virginia the court held that corporations 
were not citizens within the meaning of the clause of the 
Constitution which declares that " the citizens of each 
State shall be entitled to all the privileges and immunities 
of citizens in the several States ;" that the terms " citi- 
zens " as there used applied only to natural persons, mem- 



217 

l)ors of the l»o(ly-]»olitie, owing alleginnce to tlio St:\t(\, and 
not to avtitic'uil luTsons created by the li-gislatiuH! and 
[losses^sing only the attrihutes wliieh the legii>hitui-L' had 
prescribed. It was true, the conrt observed, that it bad 
been held that where contracts or rights of property wei'c 
to l)e enforced })\ or against a (Hir[)oration, the courts 
of llic I'nited States will, for ibe pui-posc of maintaining 
jurisdii'tion, consider tlie cor[>oration as reiircscnting citi- 
zens of the State unihM- the biws of which it was created, 
and to that extent would treat a coi-jioi'ation as a citizen 
within the cbmsc of the ( 'onstitntion extending the jndic- 
icial power of the United States to controvci'sies between 
citizens of ditrerent States; bnt the court added tliat in 
no case iiad a corporation liecn consiik'rcd a citizen witlnn 
the meaning of the provisit^i, whicli declares that "the 
citizens of each State shall he entitled to all tlie privileges 
and immunities of citizens in the several States." AVith 
respect to that provision Judge Field, speaking for the 
court, said as follows : 

'■ It was undoubtedly the object of the clause in question to place the 
citizens of each State upon the same footing -svith citizens of other States, 
so far as the advantages resulting from citizenship in those States are con- 
cerned. It relieves them from the disabilities of alienage in otherStates ; 
it inhil)its discriminating legislation against them by other States; it 
gives them the right of free ingress into other States, and egress from 
them : it insures to them in other States the same freedom po.ssessed by 
the citizens of those States in the acquisition and enjoyment of property 
and in the pursuit of happiness; and it secures to them in other States 
the equal protection of their laws. It has been justly said that no pro- 
vision in the Constitution has tended so strongly to constitute the citi- 
zens of the United States one people as this.* Indeed, without some pro- 
vision of the kind removing from the citizens of each State the disabili- 
ties of alienage in the other States, and giving them equality of privilege 
with citizens of those States, the Republic would have constituted little 
more than a league of States; it would not have constituted the Union 
which now exists. 

" But the privileges and immunities secured to citizens of each State in 
the several States, by the provision in question, are those privileges and 
immunities which are common to the citizens in the latter States under 

* Lcmmon vs. The I'eople, 20 New York, 607. 



218 

their constitution and laws by virtue of their being citizens. Special 
privileges enjoyed by citizens in their own States are not secured in other 
States by this provision. It was not intended by the provision to gi\e to 
the laws of one State any operation in other States. They can have no 
such operation, except by the permission, express or implied, of those 
States. The special privileges which they confer must, therefore, be en- 
joyed at home, unless the assent of other States to their enjoyment therein 
be given. 

"Now a grant of corporate existence is a grant of special privileges to 
the corporators, enabling them to act for certain designated purposes as a 
single individual, and exempting them (unless otherwise specially pro- 
vided) from individual liability. , The corporation beingthe mere creation 
of local law, can have no legal existence beyond the limits of the sov- 
ereignty where created. As said by this court in Bank of Augusta vs. 
Earlc, ' it must dwell in the place of its creation, and cannot migrate to 
another sovereignty.' The recognition of its existence even by other 
States, and the enforcement of its contracts made therein, depend purely 
upon the comity of those States — a comity which is never extended where 
the existence of the corporation or the exercise of its powers are preju- 
dicial to their interests or repugnant to their policy. Having no absolute 
right of recognition in other States, but depending for such recognition 
and the enforcement of its contracts upon their assent, it follows, as a 
matter of course, that such assent may be granted upon such terms and 
conditions as those States may think jjroper to impose. They nuiy ex- 
clude the foreign corporation entirely ; they may restrict its business to 
particular localities, or they nray exact sucli security for the performance 
of its contracts with their citizens as in their judgment will best promote 
the public interest. The whole matter rests in their discretion. 

" If, on the other hand, the provision of the Constitution could be con- 
strued to secure to citizens of each State in other States the peculiar 
privileges conferred by their laws, an extra-territorial operation would be 
given to local legislation utterly destructive of the independence and the 
harmony of the States. At the present day corporations are multiplied 
to an almost iudetinite extent. Tiiere is scarcely a business pursuetl re- 
quiring the exjienditure of large capital, or the union of large numbers, 
that is not carried on by corporations. It is not too much to say that the 
wealth and business of the country are to a great extent controlled by 
them. And if, when comjiosed of citizens of one State, their corporate 
jjowers and franchises could be exercised in other States without restric- 
tion, it is easy to see that, with the advantages thus possessed, the most 
important business of those States would soon pass into their hands. 
The principal business of every State would, in fact, be controlled by cor- 
porations created by other States. 

" If the right asserted of the foreign corporation, when composed of 
citizens of one State, to transact business in other States were even re- 
stricted to such business as corporations of those States were authorized 



210 

to transact, it would still follow that those Htatcs would bo miablo to 
limit tlu' numhor of corporations doing business therein. They could 
not charter a company for any purpose, however restricted, without at 
once openins the door to a liood of corporations from other States to cn- 
gaii-e in the sanu> pursuits. They could not repel an intruding corporation, 
exc<i>l on tlie condition of refusing incori>nration for a similar pur^iosc 
to their own citizens, and yet it might be of the highest public interest 
that the number of corporations in tbe Stale should be limited ; that 
they sliouhl be re(iuired to give publicity to their transactions; to sub- 
mit their atfairs to proper exaiuinalion ; to be sul)ject to forfeiture of 
their cori)orate rights in case of mismanagement, and that their officers 
should be held to a strict accountability for the manner in which the 
business of the corporation is managed, and lie liable to sumuuiry re- 
nu>val. 

" ' It is impossible,' to repeat the language of this court in i:'i,iL- „f An- 
ffiisfa IS. Ein-lc, 'upon any sound principle, to give such a construction to 
the article in question,' — a construction which would lead to results like 
these." 

Ill Marsh vs. Fnlton County the court hold thtir where 
honds of a county wore issued without autliorily hy its 
supervisoivs to a raih-oad company, tliey were iiivahd in 
the liands of an innocent purchaser; that the Mutliority to 
contract innst exist hefore any protection as such' purchaser 
can be cUiinied hy the hoUUa-. And furtlier, tint where 
the supervisors possessed no authority to make a subscrip- 
tion or issue bonds to a raih'oad company in the first in- 
stance, without the previous sanction of the qualified voters 
of the county, they could not ratify a subscription to the 
company already made without sucli authority. Said the 
coitrt, speaking through Judge Field, as h)llows : 

" A ratification is, in its effect upon the act of an agent, equivalent to 
the possession by him of a previous authority. It operates upon the act 
ratified in the same manner as though the authority of the agent to do 
the act existed originally. It follows that a ratification can only be made 
when the party ratifying possesses the power to perform the act ratified. 
The supervisors possessed no authority to make the subscription or issue 
the bonds in the first instance without the previous sanction of the quali- 
fied voters of the county. The supervisors, in that particular, were the 
mere agents of the county. They could not, therefore, ratify a subscrip- 
tion without a vote of the county, becaiase they could not nuike a sub- 
scription in the first instance without such authorization. It would be 
absurd to say that they could, without such vote, by simple expressions 



220 

of approval, or in some other indirect way, give validity to acts, when 
they were directly in terms prohibited by statute from doing those acts 
until after such vote was had. That would be equivalent to saying that 
an agent, not having the power to do a particular act for his principal, 
could give validity to such act by its indirect recognition.'^ 

" We do not mean to intimate that liabilities may not be incurred by 
counties independent of the statute. Undoubtedly they may. The 
obligation to dojustice rests upon all persons, natural and artificial, and 
if a county obtains the money or property of others without authority, 
the law, independent of any statute, will compel restitution or compen- 
sation. But this is a very difl[erent thing from enforcing an obligation 
attempted to be created in one way, when the statute declares that it 
shall only be created in another and different way."' 

Ill Touilinson vs. Jessnp the court lielrl that, where a 
general hiw of South Carohna })assedin 1841 provided that 
the chart c^-r of every corporation snhse(piently granted, and 
any renewal, amendment, or modificaticni thereof, should 
he suhject to amendment, alteration, or repeal hy legisla- 
tive authority, unless the act granting the charter or the 
renewal, amendment, or modiUcation, in express terms 
excepted it from the general law, it was competent for 
the legislature of the State to alter an amendment to a 
corporation suhsequently created, which exempted its prop- 
erty from taxation without such exception, and to subject 
the property to taxation; that the ])ower reserved to the 
State hy the general law authorized any change in the 
contract of the corporation, created hy the charter between 
the corporators and the State, as it originally existed, or as 
subsequently' modified, or its entire revocation. On this 
point. Judge Field, speaking for the court, said as follows : 

" The object of the reservation, and of similar reservations in other 
charters, is to prevent a grant of corporate rights and privileges in a form 
which will preclude legislative interference with their exercise if the 
public interest .should at any time require such interference. It is a 
provision intended to preserve to the State control over its contract with 
the corporatora, which without that provision would be irrepealable and 

protected from any measures aftecting its obligation. Immunity from 

taxation, constituting in these cases a part of the contract with the gov- 
ernment, is, by the reservation of power such as is contained in the law 

* McCraclceu vs. City of San Francisco, 16 Cal., G24. 



221 

of 1841, sn1)ii-ct to iKMVVokcd (Hiually willi any oilier i>r..\ isiun of (lir 
oliarter whenover the leyislaturo may (Iccin il cxiicdicut lur llic i)ul)lir 
iutorff<ts that the nnocation i^hall hv made. The ns.Tva( ion allcls the 
entire irlatioii lietwcen t he State and the eorpoiat ion. ami places under leg- 
islative eontiol all rights. pi-ivile,<;es, and iMuniinilies derived l.y its 
charter directly iVoni the State. Ui.iihts ac(|uired l.y third parties, and 
which have heeonie vested unilev the charter, in the lc<iitimate exercise 
of its powers, .stand upon a different footiii.u; hut of such rights it is 
unnecessary to speak here. The State only asserts in the (ircscnt ease 
the power under the reservation to modify its own contract with the 
corporators ; it does not contend for :i power to revoke the contracts of 
tlie corporation with other parties, or to impair any vested ri-hts therehy 
acciuired." 

Ill Miiiot VS. Tlio Philadelphia, W^ihniiio-toii and Balti- 
more Railroad C'onipany -de.^i.Uiiated in the reports as 
"The Delaware Kailroad Tax "-the eonrt .u'ave strong 
expression to the rule that exemption from taxation hy 
the State irmst he strictly pursued. On this point, 
speaking through Judge Field, it said as follows -. 

'• It has also hcen repeatedly held hy this court that the legislature of 
a State may exempt particular parcels of property or the property of par- 
ticular person.sor corporations from ta.vation either for a specified period 
or perpetually, or may limit the amount or rate of taxation to which 
.such property shall be subjected. And when such immunity is conferred, 
or such limitation is prescribed by the charter of a corporation, it becomes 
a part of the contract, and is eqnally inviolate with its other stipulations. 
But before any such exemption or limitation can be admitted, the intent 
of the legislature to confer the immunity or prescribe the limitation, 
must be clear beyond a reasonable doiil)t. All i)ublic grants are strictly 
construed. Nothing can be taken against the State by presumption or 
inference. The established rule of construction in such cases is that 
rights, privileges, and immunities, not expressly granted, are reserved. 
There is no safety to the public inteiests in any other rule. And with 
special force does the principle, upon which the rule rests, apply when 
the right, privilege, or immunity claimed calls for any abridgment of the 
powers of the government, or any restraint upon their exercise. The 
power of taxation is an attribute of sovereignty, and is essential to every 
independent government. As this court has said, the whole community 
is interested in retaining it undiminished, and has ' a right to insist that 
its abandonment ought not to be presuin<-d in a case in which the delil)- 
erate purpose of the State to abandon it does not appear.'-' If the point 
were not already adjndged, it would admit of grave consideration, whether 

* Providence Bank vs. Billings. 4 Peters, 5G1. 



tlic legislature of a State can surrender this i)0\ver, and make its action 
in this respect binding upon its successors, any more than it can surrender 
its police power or its right of eminent domain. But the point being ad- 
judged, the surrender, when claimed, must be shown by clear, unambig- 
uous language, which Avill admit of no reasonable construction consistent 
with the reservation of the power. If a doubt arise as to the intent of 
the legislature, that doubt must be solved in favor of the State.'' 

The same doctrine is reiterated in equally emphatic 
terms in the case of Hoge vs. The Railroad Company (99 
U.S., 354-5). 

In the case of Board of Commissioners of Tip[)ecanoe 
County vs. Lucas, Treasurer, the court held that munici}ud 
corporations are mere instrumentalities of the State for 
the convenient administration of government, and that 
tlieir powers may be qualified, enlarged, or withdrawn at 
the pleasure of the legislature; that the tenure of property, 
derived from the State for specific public pui'poses, or 
obtained for such purposes through means which the State 
alone can authorize, — that is, taxation — is so far su])ject 
to the contrbl of the legislature, that the property may be 
applied to other public uses of the municipaHty than those 
originally designated, and, therefore, that it was compe- 
tent for the legislature to direct a restitution to taxpayers 
of a county, or other municipal corporation, of property 
exacted from them by taxation, into whatever form the 
property may have been changed, so long as it remained 
in' the possession of the municipality. 

In Broughton vs. Pensacola the court held that a change 
in the charter of a municipal cor]»oration, in whole or in 
part, by an amendment of its provisions, or the substitution 
of a new charter in place of the old one, embracing suli- 
stantially the same coportitors and the same territory, 
would not be deemed, in the absence of express legislative 
declaration otherwise, to aflect the identity of the corpo- 
ration, or to relieve it from its previous liabilities, although 
difi"'erent powers were possessed under the amended or new 
charter, and dilferent officers administered its afiairs. The 
court said, speaking through Judge Field, as follows : 



228 

" Altlioiijili a muiiiciiial coi-poration. so I'ai'as it is iiivcslcd witli siihor- 
dinate legislative ix.w.as lor local purposes, is a mere iiisl rimieiilality of 
the State tor the coiiveiiieiil adiuinist ration oI'l^on eriimeiit, \ .1 . wlun au- 
thorized to take slock iu a railroad company, and issue its ol.li-at ions in 
payment of the stock, it is to tliat ext.ait to l.e deenud a privat.' corpor- 
ation, and its oblijiutions are secured by all tiu' fiiuiranlic s wliich jirotect 
the enuamauents of private individuals. The inhilution ol' the Constitu- 
tion, which ])reserves against the interference of a State tiie sa(a-e(lness of 
eoiitracts, a])plie.s to the liabilities of municipal eori)orai ions cicated by 
its permission, and althouuh the repeal or modilication of the charter of 
a eoriioration of that kind is not within the inhibition, yet it will not be 
admitted, where its Iciiislation is susceptible of another construetion, that 
the State has in this way sanctioned an evasion of or escai)e from liabilities, 
the creation of which it authorized. When, thereibre, a new tbrm is 
given to an old municipal corporation, or such a eor])oration is reorgan- 
ized under a new charter, taking, in its new organization, the place of the 
old one, embracing substantially the same corporators and the same ter- 
ritory, it will be presumed that the legislature intended a continued ex- 
istence of the same corporation, although different powers are possessed 
under the new charter, and different otKicers administer its affairs : and 
in the absence of express provision tor their ]iaynient otherwise, it will 
also be presumed in such ca.se that the legislature intended that the lia- 
1)ilities, as well as the rights of property of the corporation in its old 
Ibrm, should accompany the corporation in its reorganization. That such 
was the intention of the .State of Florida in the present ease, we have no 
doubt: to suppose otherwise would be to impute to her an insensibility 
to the claims of morality and justice, which nothing in her history war- 
rants. 

" The principle which applies to the State would seem to be applicable 
to cases of this kind. Obligations contracted by its agents continue 
against the State whatever changes may take jdace in its constitution of 
government. ' The new government,' says Wheaton, ' succeeds to the fis- 
cal rights, and is bound to fulfill the fiscal obligations of the former gov- 
ernment. It beco7ues entitled to the public domain and other property 
of the State, and is bound to pay its debts previously contracted.' — (Inter. 
Law, 30.) So a change in the charter of a municipal corporation, in 
whole or part, by an amendment of its provisions, or the substitution of 
a new charter in place of the old one, should not he deemed, in the ab- 
sence of express legislative declaration otherwise, to affect the identity 
of the corporation, or to relieve it from its previous liabilities." 

Til the case of. the United States vs. Xew Oi-leans, the 
eoiift held that wliere inunieipal corjxiratious are created, 
tlie power of taxation is vested in thern as an essential 
attrihiite for ah. the pnr[)Oses of their existence, unless its 
exercise he in express terms prolnhited ; and that when. 



±24 

in order to exci-uto ;i pul>lic work, they have heen vested 
with authority to borrow money or incur an obligation, 
they liavo the power to levy a tax to raise revenue to pay 
the nione}' or discharge the obligation without any special 
mention that such power is granted, and that in case of a 
refusal to provide for the payment of the indebtedness 
contracted, a mandamus should be issued to compel the 
levying of such tax. On this point the court said, speak- 
ing through Judge Field : 

"The position that the power of taxation belongs exelusively to the 
legislative branch of the government, no one will controvert. Under our 
system it is lodged nowhere else. But it is a power that may be dele- 
gated by the legislature to municipal corporations, which are merely the 
instrumentalities of the State for the better administration of the govern- 
ment in matters of local concern. When such a corporation is created 
the power of taxation is vested in it as an essential attribute for all the 
purposes of its existence, unless its exercise be in express terms prohib- 
ited. For the accomplishment of those purposes, its authorities, however 
limited the corporation, must have the power to raise money and control 
its expenditure. In a city, even of snuill extent, they have to provide 
for the preservation of peace, good order, and health, and the execution 
of such measures as conduce to the general good of its citizens ; such as 
the opening and repairing of streets, the construction of sidewalks, sew- 
ers, and drains, the introduction of water, and the establishment of a fire 
and police department. In a city like New Orleans, situated on a navi- 
gable stream, or on a harbor of a lake or sea, their powers are usually en- 
larged so as to emijrace the building of wharves and docks or levees for 
the benelit of commerce, and they may extend also to the construction of 
roads leading to it, or the contributing of aid towards their construction. 
The number and variety of works which may be authorized, having a 
general regard to the weltare of the city or of its people, are mere mat- 
ters of legislative discretion. All of tliem require for their execution 
considerable expenditures of money. Their authorization without pro- 
viding the means for such expenditures would be an idle and futile pro- 
ceeding. Tlieir authorization, therefore, implies and carries with it the 
power to adopt the ordinary means employed by such bodies to raise 
funds for their execution, unless such funds are otherwise pi'ovided. 
And the ordinary means in such cases is taxation. A municipality with- 
out the power of taxation would be a body without life, incapable of acl- 
iug, and serving no usel'ul purpose'. 

"For the same reason, when authority to borrow money or incur an 
obligation in order to execute a public work is conferred upon a munici- 
pal corporation, the power to levy a tax for its payment or the discharge 
of the obligation accompanies it ; a"nd this, too, without any special men- 



tiou tliat such power is Liraiitcd. This arisi's iVom tiic lact Ihal such cor- 
l)orations sel(h)iu possess — so seldom, iiKh'ed, as to be exceptioiuil — any 
means to disc-barge their pecnniary ol)ligations except by taxation. ' It 
is, therefore, to l)e interred,' as observed by tliis court in Loan Association 
vs. Topeka, (20 Wall., (JtiO,) ' that when the legislature of a State authorizes 
a county or city to contract a debt by bond, it inteiuls to authorize it to 
levy such taxes as. arc necessary to pay the dclit, unless there is in tlu' 
act itself, or in some general statute, a limitation u])ou tlu' power ol' tax- 
ation w hi(-h repels sueli an inference.'" 

Ill tlu! case of The Pensacola 'LY'leii'raiili Coiiipany vs. 
'I'lie WeskTii ITuioii TeleoTajili ('(iiii|iaii_v a Itill w:is tiled 
to ol)laiii an iujiAiietiou restraiuing the (lei'eii(laiit, tlie West- 
ern ITnion Co., troin erecting, usino-, or maintaining a tel- 
egrapli line in the county of Escaiubia, Florida, on the 
ground that l»y a statute of the State, passed in December, 
1866, the complainant, the Fensacola Co., had acquired 
the exckisive right to erect and use lines of telegraph in 
that county for the period of twenty years. The court be- 
low (k'liied the injunction and dismissed the bill, upon the 
ground that the statute was in conflict with the act of 
Congress of July 24tli, 1866, entitled '• An act to :ud in 
the construction of telegraph lines, and to secure to the 
government the nse of the same for postal, military, 
and other purposes," tlie first section of whieh provides 
"■ that any telegraph company now organized, (n- which 
may hereafter be organized, under the laws of any State 
in this Union, shall have the right to construct, main- 
tain, and operate lines of telegraph through and over any 
portion of the public domain of the United States, over 
and along any of the military or post roads of the United 
States, which have 1)een or may hereafter be declared 
such by act of Congress, and over, under, or across the 
navigable streams or waters of the United States: PmrnJcd, 
That sucli lines of telegraph shall be so constructed and 
maintained as not to obstruct the navigation of such streams 
and waters, or interfere with the ordinary travel on sueli 
military or post roads. And any of said compaiiit's shall 
have the right to take and use from sueh puf)lic lands the 
necessary stone, timber, and other materials for its posts, 
15 



226 

piers, stations, and otlier needful uses in the construction, 
maintenance, and operation of said lines of telegraph, and 
may pre-empt and use such portion of the nnoccnpied 
public lands subject to pre-emption, through which its said 
lines of telegraph may be located, as maybe necessary for 
its stations, not exceeding forty aci-es for each station, but 
such stations shall not be within lifteen miles of each 
other." * 

The statute of Florida incorporated the Pensacola Tel- 
egraph Company, which had been organized in December 
of the previous year, and in terms declared that it should 
enjoy " the sole and exclusive privilege and right of es- 
tablishing and maintaining lines of electric telegraph in 
the counties of Escambia and Santa Rosa, either from dif- 
ferent points within said counties, or connecting with lines 
coming into said counties, or either of them, from other 
points in this or any other State," 

Soon after its organization and in 1866 the company 
erected a line of telegraph from the city of Pensacola, 
through the county of Escambia, to the southern boundary 
of Alabama, a distance of forty-seven miles, which has 
since been open and in continuous operation. It was lo- 
cated, hy permission of the Alal)ama and Florida Rail- 
road C\unpany, along its line of railway. After tlie charter 
was obtained, the line was substantially rebuilt, and two 
other lines in the county were erected by the company. 

In February, 1873, the Legislature of Florida passed an 
act granting to the Pensacola and Louisville Railroad 
Company, which had become the assignee of the Alabama 
and Florida Railroad Company, the right to construct and 
operate telegraph lines upon its right-of-way from the bay 
of Pensacola to the junction of its road with the Mobile 
and Montgomery railroad, and to connect the same with 
the lines of other companies. By an amendatory act 
passed in the following year (February, 1874), the rail- 
road company was authorized to construct and operate the 

* 14 statutes at Large, 221. 



lines, ii:)l onlv nloii.u' its road :i< lli;'!! li.catc.ljmt as it 
might 1)1' thoreal'tcr located, and aloiiii- coinu'etiiii;- roads 
in tlie eountv, to (lie boundary of AlaKania, and to con- 
nect and consolidate tlieni with other tele;;-i'a[(li conqianies, 
and to sell and assig-n the property a[)pert;iining' to them, 
and the rights, privileges, and franchises conferred by the 
act; and it empowered the assignee, in such case, to con- 
struct and operate the lines and to enjoy these rights, 
privileges, and franchises. 

Under this amendatory act, and soon after its [)assage, 
the railroad company assigned the rights, privileges, and 
franchises thus ac(piired to the Western Union Telegraph 
Company, a ccn-poration created under the hiws of the 
State of New York, which at once proceeded to erect a 
line from the city of Pensacola to the southern boundary 
of Alabama, along tlie identical railway on which tlie 
complainant's Hue was erected in 1860, and ever afterwards 
located, with the avowed intention of using it to transmit 
for compensation messages for the public in the county 
and State. By the erection and operation of this line, the 
complainant alleged that its property- would become val- 
ueless, and that it would lose the benefits of the franchises 
conferred by its charter. 

The Supreme Court affirmed the decision of the circuit 
court, dismissing the bill, holding that the act of Congress 
of July 24, 1866, so far as it declared that the erection of 
telegraph lines should, as against State interference, be 
free to all who accepted its terms and conditions, and that 
a telegraph company of one State should not, after accept- 
ing them, be excluded by another State from prosecuting 
its business witliin her jurisdiction, was a legitimate regu- 
lation of commercial intercourse among the States, and 
appropriate legislation to execute the powers of Congress 
over the postal service. And further, that the right-of-way 
which the act granted was not limited to such military and 
post roads as were upon the public domain. The Chief 
Justice, who delivered the opinion of the court, said as 
follows : 



228 

'■' It [tlie act of Congvcs-s of 1866] substantially declares, in the interest 
of commerce and the convenient transmission of intelligence from place 
to place by the government of the United States and its citizens, that 
the erection of telegraph lines shall, so far as State interference is con- 
cerned, be free to all who will submit to the conditions imjiosed by 
Congress, and that corporations organized under the laws of one State for 
constructing and operating telegraph lines shall not be excluded by an- 
other from prosecuting their business within its jurisdiction, if they ac- 
cept the terms proposed by the national government for this national 
privilege. To this extent, certainly, the statute is a legitimate regulation 
of commercial intercourse among the States, and is appropriate legisla- 
tion to carry into execution the powers of Congress over the postal ser- 
vice. It gives no foreign corporation the right to enter upon private 
property without the consent of the owner and erect the necessary struc- 
tures for its business, but it does provide that, whenever the consent of 
the owner is obtained, no State legislation shall prevent the occupation 
of post roads for telegraph purposes by such corporations as are Avilling 
to avail themselves of its privileges. 

" It is insisted, however, that the statute extends only to such military 
and post roads as are upon the public domain ; but this, we, think, is not 
so. Tlie language is, ' Through and over any portion of the public do- 
main of the United States, over and along any of the military or post 
roads of the United States which have been or may hereafter be declared 
such by act of Congress, and over, under, or across the navigable streams 
or waters of the United States.' There is nothing to indicate an inten- 
tion of limiting the effect of the words employed, and they are, there- 
fore, to be given their natural and ordinary signification. Read in this 
way, the grant evidently extends to the public domain, the military and 
po.st roads, and the navigable waters of the United States. These are all 
within the dominion of the national government to the extent of the na- 
tional powers, and are, therefore, subject to legitimate congressional regu- 
lation. No (juestiou arises as to the authority of Congress to provide for 
the appropriation of private property to the uses of the telegraph, for no 
such attempt has been made. The use of public projierty alone is granted. 
If private property is required, it must, so far as the present legislation is 
concerned, be obtained by private arrangement with its owner. No com- 
pulsory proceedings are authorized. State sovereignty urider the Consti- 
tution is not interfered with. Only national privileges are granted." 

From this decision Judges Field and Hunt dissented, 
Judge Field delivering a dissenting opinion. In that 
opinion he said as follows : 

" There can be no serious question that the State of Florida possessed 
the absolute right to confer upon a corporation created- by it the exclu- 
sive privilege for a limited period to construct and operate a telegraph 
line within its borders. Its constitution, in existence at the time, em- 



229 

powered the legislature to grant exclusive privileges and franchises to 
private coriiorations for a period not exceeding twenty years. The ex- 
clusivenoss of a jirivilcge often constitutes tlie only inducement for nn- 
dirtakings holding out little ])rospect of inunediate returns. Tlie uncer- 
tainty ol' tlic results of an ciiterjjrise will often deter capitalists, naturally 
cautious and distrustful, from making an investment without some as- 
suraiu-e that in easi^ tlu' Imsiness Itecome prolilalile they shall not en- 
counter the dangei: of its destruction or diniinut i(Ui liy conipetition. It 
has. lluTelore, l)een a common practice in all the States to encourage en- 
terprises having for their ohject the promoticm of the puhlic good, such 
as the construction of bridges, turnpikes, railroads, and canals, by grant- 
ing for limited periods exclusive privileges in connection with them. 
Sucrh grants, so far from being deemed encroachments upon an}' rights or 
powers of the United States, are held to constitute contracts, and to be 
within the protecting clause of the Constitution prohibiting any impair- 
ing of their obligation. 

'"The grant to the complainant was invaded by the subsequent grant 
to the Pensacola and Louisville Railroad Company. If the first grant 
was valid, the second was void, according to all the decisions of this court 
upon the power of a State to impair its grant since the Dartmouth Col- 
lege case. The court below did not hold otherwise, and I do not under- 
.stand that a different view is taken here; but it decided, and this court 
sustains the decision, that the statute making the first grant was void by 
reason of its conflict with the act of Congress of July 24th, 1866. 

" With all deference to my associates, I cannot see that the act of Con- 
gress has anything to do with the case before us. In my judgment, it has 
reference only to telegraph lines over and along military and post roads 
on the public domain of the United States. The title of the act expresses 
its purpose, namely, ' to aid in the construction of telegraph lines and to 
secure to the government the use of the same for postal, military, and 
other purposes.' The aid conferred was the grant of a right of way over 
the public domain ; the act does not propose to give aid in any other way. 
Its language is that any telegraph company organized under the laws of 
a State 'shall have the right to construct, maintain, and operate lines of 
telegraph through and over any portion of the public donuiiu, over and 
along any of the military and post roads which have been, or may here- 
after be, declared such by. act of Congress, and over and across the navi- 
gable streams or waters of the United States.' The portion of the public 
domain which may be thus used is designated by reference to the mili- 
tary and post roads npcju it. Were there any doubt that this is the cor- 
rect construction of the act, the provision which follows in the same sec- 
tion would seem to remove it, namely, that any of the said companies 
shall ' have the right to take and use from such public lands the necessary 
stone, timber, and other materials for its posts, piers, stations, and other 
needful uses in the construction, maintenance, and operation of said lines 
of telegraph, and may pre-empt and use such portion of the unoccupied 



230 

2mbUe lands, subject to pre-emption, through which its said lines of tele- 
graph may be located, as may be necessary for its stations, not exceeding 
forty acres for each station, but such sections shall not be within fifteen 
miles of each other.' In the face of this language, the italics of which 
are mine, there ought not to be a difference of opinion as to the obj ect of 
the act, or as to its construction. The conclusion reached by the major- 
ity of the court not only overlooks this language, but implies that Con- 
gress intended to give aid to the telegraph companies of the country — 
those existing or thereafter to be created — not merely by allowing them 
to construct their lines over and along post roads upon the public lands, 
but also over and along such roads within the States which are not on the 
public lands, where heretofore it has not l>een supposed that it could 
rightfully exercise any power. 

" The only military roads belonging to the United States within the 
States are in the military reservations ; and to them the act obviously 
does not apply. And there are no post roads belonging to the United 
States within the States. The roads upon which the mails are carried by 
parties, under contract with the government, belong either to the States 
or to individuals or to corporations, and are declared post roads only to 
protect the carriei-s ft'om being interfered with, and the mails fi-oni being 
delayed in their transportation, and the postal service from frauds. The 
government has no other control over them. It has no proprietary inter- 
est in them or along them to bestow ujion any one. It cannot use them 
without paying the tolls chargeable to individuals for similar uses. It 
cannot prevent the State from changing or discontinuing them at its 
pleasure; and it can acquire no ownersliip or property interest in them, 
except in the way in which it may acquire any other property in the 
States, namely, by purchase or by appropriation upon making just com- 
pensation,* 

" The i^ublic streets in some of our cities are post roads under the dec- 
laration of Congress;]- and it would be a strange thing if telegraph lines 
could be erected by a foreign corporation along such streets without the 
consent of the municipal and State authorities, and, of course, without 
power on their part to regulate its charges or control its management. 
Yet the doctrine asserted by the majority of the court goes to this length : 
that if the owners of the property along the streets consent to the erec- 
tion of such lines by a foreign corporation, the municipality and the State 
are powerless to prevent it, although the exclusive right to erect them 
maj' have been granted liy the State to a corporation of its own creation. 

" If by making a contract Avith a party to carry the mails over a par- 
ticular road in a State, which thus becomes by act of Congress for that 
purpose a post road. Congress acquires such rights with respect to the 
road that it can authorize corporations of other States to construct along 

* Dickey vs. Turnpike Road Co., 7 Dana (Ky.), 113. 
t Rev. Stats., sec. 3,964. 



231 

and over it a line of telegraph, why may it not authorize them to con- 
strnct alon.L>- the road a railway, or a turnpike, or a caual, or any other 
work which may be used for the promotion of eomnieree? If the au- 
thority exists in tlie one case, I cannot see why it does not equally exist 
ill the other. And if Congress can authorize the corporations of one 
State to construct telegraph lines and railways in anotiier State, it must 
have the right to authorize them to condemn i)rivate pro])erty for that 
purpose. Tlie act under consideration does not, it is true, provide for 
such condemnation, but if the right exist to authorize the construction 
of the lines, it cannot be defeated from the inability of the corporations 
to acquire the necessary property by purchase. The power to grant im- 
l)lies a power to confer all the authority necessary to make the grant ef- 
fectual. It was for a long time a debated question whether the United 
States, in order to obtain property required for their own purposes, could 
exercise the right of eminent domain within a State. It has been decided, 
only within the past two years, that the government, if such property 
cannot be obtained liy i)urchase, may ajipropriate it upon making just 
compensation to the owner,* but never has it been suggested that the 
United States could enable a corporation of one State to condemn prop- 
erty in another State, in order that it might transact its private business 
there. 

" We are not called upon to say that Congress may not construct a rail- 
road as a post road, or erect for postal purposes a telegraph line. It may 
be that the power to establish post roads is not limited to designating the 
roads which shall be used as postal routes ; a limitation which has been 
asserted by eminent jurists and statesmen. f If it be admitted that the 
power embraces also the construction of such roads, it does not follow 
that Congress can authorize the corporation of one State to construct and 
operate a railroad or telegraph line in another State for the transaction of 
private business, or even to exist there, without the permission of the lat- 
ter State. By reason of its previous grant to the complainant Florida was 
incompetent to give such permission to the assignor of the defendant, or 
to any other company, to construct a telegraph line in the county of Es- 
cambia. The act of the State of February 3d, 1874, in the fac." of this 
grant, can only be held to authorize the construction of telegraph lines 
by different companies in other counties. If, therefore, the defendant has 
any rights in that county they are derived solely from the act of Congress. 

"A corporation can have no legal existence beyond the limits of the 
sovereignty which created it. In The Bank of Augusta vs. Earle, it was 
said by this court that ' it must dwell in the place of its creation and 

■■ Kohl vs. U. S., 1 Otto, 8G7. 

t Elliott's Debates, edition of 1836, 433, 487 ; Views of President Mon- 
roe accompanying his veto message of May 4th, 18:2-2; Views of Judge 
^McLean in his dissenting opinion in the Wheeling Bridge Case, 18 How., 
p. 441-2. 



cAuuot migrate to another sovereignty.'* And in Panl vs. Virginia we 
added that 'the recognition of its existence even by other States, and the 
enforcement of its contracts made therein, depend purely upon the com- 
ity of those States, a comity which is never extended where the exist- 
ence of the corporation or the exercise of its powers is prejudicial to their 
interests or repugnant to their policy. Having no absolute right of rec- 
ognition in other States, but depending for such recognition and the en- 
forcement of its contracts upon their assent, it follows, as a matter of 
course, that such assent may be granted upon such terms and conditions 
as those States may think proper to impose. They may exclude the for- 
eign corporation entirely ; they may restrict its business to particular 
localities, or they may exact such security for the performance of its con- 
tracts with their citizens as in their judgment will best promote the pub- 
lic interest. The whole matter rests in their discretion. 'f If, therefore, 
foreign corporations can exist in the State of Florida, and do business 
there by the authority of Congi-ess, it must be because Congress can cre- 
ate such corporations for local business, — a doctrine to which I cannot 
assent, and which to my mind is pregnant with evil consequences. 

" In all that has been said of the importance of the telegraph as a 
means of intercourse, and of its constant use in commercial transactions, I 
fully concur. Similar language maybe used with regard to railways; 
indeed, of the two the railway is much the more important instrument 
of commerce. But it is difficult to see how from this fact can be deduced 
the right of Congress to authorize the corporations of one State to enter 
within the borders of another State and construct railways and telegraph 
lines in its difterent counties for the transaction of local business. The 
grant to the complainant in no way interferes with the power of Congress, 
if it possess such power, to construct telegraph lines or railways for pos- 
tal service or for military purposes, or with its power to regulate com- 
merce between the States. The imputation that Florida designed by the 
grant to obstruct the powers of Congress in these respects, is not war- 
ranted by anything in her statute. A like imputation, and Avith equal 
justice, might be made against ever}' State in the Union which has au- 
thorized the construction of a railway or telegraph line in any of its 
counties, with a grant of an exclusive right to operate the road or line for a 
limited period. It is true the United States, equally with their citizens, 
may be obliged in such cases to use the road or line, but it has not here- 
tofore been supposed that this fact impaired the right of the State to make 
the grant. AVhen the general government desires to transact business 
within a State it necessarily makes use of the highways and modes of 
transit provided under the laws of the State, in the absence of those of 
its own creation. 

" The position advanced, that if a corporation be in any way engaged 
in commerce it can enter and do business in another State without the 

- 13 Peters, 588. t 8 Walhice, 181. 



233 

hitler's coiisciif, is iKivcl :m(l startliu.-i'. T.ct this doctrine be once cs- 

lal.lislivd, aiHltlic -iiratcr part of the trade and coiiinierce of every State 
will soon l)e carried on by corporations created without it. The business 
of the country is to <i hirge extent conducted or controlled by corpora- 
tions, and it may be, as was said by this court in the case referred to 
(Paul vs. Yirjiinia),' of the hijihest puldic; interest that the. number of 
corporations in the State shouhl be liniit<d, that they .should be iviinired 
to ^Uive pulilicity to their trausaelioiis, to submit their affairs to pro]ier 
examination, to be sulijeet to forfeituic of their corponite ri^lits in case 
of mismanagement, and tiiat tlieir oflieers slioidd be held to a strict ac- 
countability for the manner in wliich the business of tlie cori)orations is 
managed, and be lialde to summary removal.' All these guards against 
corporate abuses the State would be incai)able of taking against a corpor- 
ation of another State operating a railway or a telegraph line within its 
borders under the permission of Congress, however extort icniate its charges 
or corrupt its management. The corporation might have a taritF of rates 
and charges prescribed by its charter, which would be beyond the control 
of the State; and thus, by the authority of Congress, a State miglit l)e 
reduced to the condition of having the rates of charges for transportation 
of persons and freight and messages within its borders regulated by an- 
other State. Indeed, it is easy to see that there will remain little of value 
in the reserved lights of the States if the doctrine announced in this case 
be accepted as the law of the land. 

" The power vested in Congress to regulate commerce ' among the sev- 
eral States ' does not authorize any intei'ference with the commerce which 
is carried on entirely within a State. 'Comprehensive as the word 
'among' is.' says Chief Justice Marshall, 'it may very properly be re- 
stricted to that commerce which concerns more States than one,' and 'the 
completely internal commerce of a State, then, may be considered as 
reserved tor the State itself.' That commerce embraces the greater part 
of the business of every State. Every one engaged in the transportation 
of property or ])ersons, or in sending me.s.sages, between diti'erent points 
within the State, not destined to points beyond it, or in the purchase 
or sale of merchandise w ithin its borders, is engaged in its commerce ; and 
the doctrine that Congress can authorize foreign corporations to enter 
within its limits and particijjate in this commerce without the State's 
consent is utterly subversive of our system of local State government. 
State control in local matters would thus be imposible." 

The Ciise of The Union Pacific Raih'oad Conipany vs. 
The Tnited States, and that of Gallatin vs. The Centfal 
Pacific Railroad Comijany, hefore the Snprenic Court at 
the Octol)er term, 1878, were hrought to test tlie validity 
of the fnnding act of Congress of May 7th, 1878, com- 
monlv called the Thurinan act. 



234 

By the first section of the act of Congress of July, 1862, 
certain persons therein designated were created a corpora- 
tion by the name of the Union Pacific Raih'oad Company, 
and authorized to construct and operate a continuous rail- 
road and telegraph line from a designated point on the 
lOOtli meridian of longitude west from Greenwich to the 
western boundary of ]*s"evada Territory, and were invested 
wdth the powers, privileges, and immunities necessary for 
that purpose, and with such as are usually conferred upon 
corporations. 

By subsequent provisions of the act and the amendatory 
act of LS()4, three grants were made to the company thus 
created: a grant of a right-of-way over the pul)lic lands 
of the United States for the road and telegra]:)li line; a 
grant often alternate sections of land on each side of the 
road, to aid in its construction and tliat of the telegraph 
line; and a grant of a certain nundjer of subsidy bonds 
of the United States, each in the sum one thousand dollars, 
payable in thirty years, with semi-annual interest — patents 
for the lands and the bonds to be issued as each twenty 
consecutive miles of the road and telegrajili should be 
completed. 

These grants were made upon certain conditions as to 
the completion of the road and telegrapli line, their con- 
struction and use l)y the government. These conditions 
are expressed in the sixth section, which is as follows: 

"Sec. 6. And be itftuihcr cnnctcd, Tluit the grants aforesaid are made 
upon condition that said company shall pay said bonds at maturity, and 
shall keep said railroad and telegraph line in repair and use, and shall 
at all times transmit dispatches over said telegraph line, and transport 
mails, troops, and munitions of war, supplies, and pnblic stores upon said 
railroad for the government whenever required to do so by any depart- 
ment thereof, and that the government shall at all times have the prefer- 
ence in the use of the same for all the jjurposes aforesaid (at fair and 
reasonable rates of compensation, not to exceed the amounts paid by 
private parties for the same kind of service); and all compensation [by 
the act of 1864 reduced to one-half] tor services rendered for the govern- 
ment shall be applied to the payment of said bonds and interest until 
the whole amount is fully paid. Said companj' mdy also pay the United 



285 

States, wholly or in part, in the same or other bonds, treasury notes, or 
other evidences of debt against the United States, to be allowed at par; 
and alter said road is completed, until said bonds and interest are paid, 
at least live per centum of the net earnings ol' said road shall also bo 
annually applied to the payment thereof." 

By the same act which iticorponited the LT]iion Paciiic 
Company, the Central Pacific Company, a corporation 
existing under the hiws of tlie State of Cahfornia, was 
authorized to construct a raih'oad and telegraph line from 
the Pacific Coast, at or near San Francisco, or the naviga- 
ble waters of the Sacramento Kiver, to the eastern bound- 
ary of California, upon the same terms and conditions in 
all respects as those contained in tlie act for the fonsti'uc- 
tion of the road and telegraph line of tlie Union Pacific, 
and to meet and connect with th;it road and telegraph line 
on tlie eastern boundary of California, Each of the com- 
panies was required to file its acceptance of the con- 
ditions of the act in the Department of the Interior within 
six months after its passage. The Central Pacific was also 
authorized, after completing its road across the State (_)f 
California, to continue the construction of tlie road and 
telegraph through the territories of the United States. 
The numlier of bonds that were to be issued to the com- 
pany were sixteen for each mile, excepting for 450 miles 
between the western base of the Sierra Nevada Mountains 
and the eastern base of the Rocky Mountains. For 150 
miles of that distance double the usual amount, namely, 
thirty-two Jjonds a mile, were to be issued, and for 300 
miles of the most m<_)nntainous and diliicult })orti<)n treble 
the amount a mile, namely, forty-eight, were to be issued. 
These bonds were to constitute a first moi'tgage on the 
whole line of railroad and telegraph, together wdth its 
rolling-stock and property of every kind. 

By the act of 1864 the United States waived its priority 
of lien and allowed the companies to issue their first mort- 
gage bonds on their respective roads to an amount not ex- 
ceeding the amount of the bonds of the United States. 
The act of 1862 provided that in case the companies failed 



236 

to coniply-with the terms and conditions prescribed by not 
completing tlie road and teleo'ra[ih line within a reason- 
able time, or not keeping the same in repair and use, Con- 
gress might pass an act to ensure their speedy completion, 
or to put them in I'cpair and use, and if the road were not 
conqik'ted by tlie first of July, 187G, the whole road and 
propi'rty were to l)e forfeited to the United States. 
Its eighteenth section was as follows : 

"Sec. 18. And be it further cnaeted, Tliat whenever it :ip])ears that the 
net earnings of the entire road and telegraph, including the amount al- 
lowed for services rendered for tlie United States, after deducting all ex- 
penditures — including repairs and the furnishing, running, and managing 
of said road — shall exceed ten per centum upon its cost, (exclusive of the 
five per centum to be paid to the United States,) 'Congress may reduce 
the rates of fare thereon, if unreasonable in amount, and may fix and 
establish the same by law. And the better to acconiplisli the object of 
this act, namely, to promote the public interest and welfare by the con- 
struction of said railroad and telegraph line, and keeping the same in 
working order, and to secure to the government cit all times (but particu- 
larly in time of war) the use and benefits of the same for postal, military, 
and other purposes. Congress may at any time— having due regard for the 
rights of said companies named herein — add to, alter, amend, or repeal 
this act." 

The amendatoiT act closes with a section providing that 
Congress " may at anytime alter, amend, or re[)eal this 
act." 

The two companies — the Union Pacitic and the Central 
Pacitic — l)oth filed their acceptance of tlie conditions of the 
act with the Department of the Interior, and proceeded 
to the construction of their respective roads. These were 
completed several yetirs before the time limited by the act, 
and they have been kept at all times since in repair and 
use. They have also been at the service of the govern- 
.ment whenever required, and no conqilaint of their ineffi- 
ciency has been made. 

Soon after the completion of the roads a question arose 
between the companies and the government, whether 
the companies were bound to pay the interest on the 
bonds of the United States as it became due from year 



t>87 

t(i year, or oiilv :it lln' matiii'ily of llic IxmkIs at tlic omI 
of the thii'ty years, and was eairied lielore llie Court 
of Claims for adjiidiration, and eaiiie, on aiii-eal from its 
division. Iieiore the Supreme C\>urt of tlie I'lnti'd States 
at tlie Cetol)er tei'iii of 1S7'). It was thert' held hy the 
eourt unaniuHaisly that the interest was not payahle hy 
the company until the maturity of the lionds. Judge 
Davis gave the o[iinion of the t-ourt. — (See Cnited States 
vs. The Union Pacilic Kaih'oad, 91 U. S., 72.) 

The same conclusion was reached h}' the Judiciary Com- 
mittee of hoth Houses of Congress. The Committee on 
the Judiciary of the Senate consisted at the time of Sen- 
ators Trumhull. Stewai't, Edmunds, Carpenter, Conkling, 
Thurman, and Kice. 

Xotwithstanding tliere was no complaint against the 
companies that they had not complied in all respects with 
the acts of Congress, or that there was any impairment of 
the value of their property, on the 7th of Ma}", 1878, 
Congress passed tlie funding act, commoidy known as the 
" Thurman act." It is entitled "An act to alter and amend 
the railroad acts of 18(52 and 18(U," giving their titles. 

This act requires that tlie whole amount of compensa- 
tion w'liich ma}' from time to time be due to tlie compa- 
nies for services rendered for the government, shall be 
retained by the United States, one half to be applied to 
the Hquidation of the interest paid by the United States 
on its bonds, and the other half to be turned into a sink- 
ing fund, which the act establishes, in the treasury of the 
United States. The act requires the Secretary of the 
Treasury to invest moneys of that fund in bonds of the 
United States. It also provides that on the 1st of Febru- 
ary of each year, one half of the compensation for ser- 
vices mentioned shall be credited to that limd, and re- 
quires the Central Pacific Company to pay into that fund 
on that day in each year 11,200,000, or so much thereof 
as may be necessary to make the five per centum of the net 
earnings payable to the United States under the act of 



238 

18G2, and llie wliole snm earned as compensation for ser- 
vices, and the snm thus paid to amount in the aii'greo'ate 
to twenty-five per centum of the whole net earnings of tlie 
company. The act requires tlie Union Pacific Company to 
pay $850,000 into the sinking fund on the 1st day of Feb- 
ruary of each year, or so mucli thereof as, with the five per 
centum and compensation for services, and the amount paid, 
shall equal twenty-five per cent, of its net earnings. And 
the act declares that no dividend shall be voted or paid to 
any stockholder or stockholders in either of the compa- 
nies, when the company is in default in respect of the pay- 
ment of the sums required into the sinking fund, or in 
respect of the five per centum of the net eai-nings, or in 
respect of any interest uj)on any debt the lien of which is 
paramount to that of the United States; and any officer or 
person who shall vote, declare, or pay any stockholder of 
said companies any dividend contrary to the provisions 
of the act, and any stockholder who shall receive any, 
shall be hable to the United States for the amount, and 
shall be deemed guilty of a misdemeanor, and, on convic- 
tion, shall be punished by a fine not exceeding ^10,000, 
and by imprisonment not exceeding one year. 

It is the validity of this act, thus changing the conditions 
and obligations of the companies under the acts of 1862 
and 1864, which was considered in the cases mentioned. 
In both cases judgments wei-e given in the com-fs below 
as a matter of form against the companies, and by them 
appeals were taken to the Supreme Court. Tiie questions 
involved were there elaborately and ably argued by dis- 
tinguished counsel. Messrs. Samuel Shellabarger and 
Jeremiah M. Wilson appearing for the Union Pacific; Mr. 
B. H. Hill, of the United States Senate, and Mr. S. AV. 
Sanderson, of California, appearing for the Central Pacific ; 
the Attorney-General, and Mr. George H. Williams, and 
Mr. Edwin J3. Smith, the Assistant Attorney-General, ap- 
pearing for the United States. The Supreme Court affirmed 
the judgment in both cases, holding that the act of May 



289 

7tli, 1S7S, was coiisCitiilional, ami tlial tlic cslaMislniKMit 
of tlio sinkinu- i'lind was a rcasoiiahlo ro<;'iilatioii for the ad- 
luinistralioii of tlu' affairs of \\iv coinitaiiii's and was wai"- 
ranted uink'rtlu' clauses ivserviiii;' to Couutcss the- riLi'lit to 
alt(M- and aninid the acts of 1S(;2 and 1S(;4. 

Jiid.ii-i's Slron--, Bradley, and Field dissenl.Ml from tlio 
judu-nient, and each of tliem read a dissenting- opinion, 
,]\u\'j:c Field eontinin-- himself principally to the case of 
the Central Pacific. His o[)inioii is as follows : 

"The ilocision [rendered] will, in my opinion, tend to ereute insecurity 
in the title to corporate property in the country. It, in eti'ect, determines 
that the general government, in its dealings with the Pacific Kailroad Com- 
panies, is under no legal obligation to fulfill its contracts, and that whether 
it shall do so is a question of policy and not of duty. It also seems to me 
to recognize the right of the government to appropriate by legislative de- 
cree the earnings of those companies without judicial inquiry and deter- 
mination as to its claim to such earnings, thus sanctioning the exercise of 
judicial functions in its own cases. And in respect to the Central Pacific 
Company it asserts a supremacy of the federal over the State government 
in the control of the corporation which, in my judgment, is subversive of 
the rights of the State. I, therefore, am constrained to add some sugges- 
tions to those presented by my associates, Justices Strong and Bradley. 
In what I have to say I shall confine myself chiefly to the case of the 
Central Pacific Company. That company is a State corporation, and is the 
successor of a corporation of the same name, created before the railroad 
acts of Congress were passed, and of four other corporations organized 
under the laws of the State. No sovereign attributes possessed by the 
general government were exercised in calling into existence tlie original 
company, or any of the companies with which it is now consolidated. 
They all derived their powers and capacitiC'^ from the State, and held 
them at its will. \ 

" The relation of the general government to the Pacific companies is 
two-fold: that of sovereign in its own territory, and that of c(mtractor. 
As sovereign, its power extends to the enforcement of such acts and reg- 
ulations by the companies as will insure, in the management of their 
roads, and conduct of their officers in its territory, the safety, convenience, 
and comfort of the public. It can exercise such control in its territory 
over all common carriers of passengers and property. As a contractor, it 
is bound by its engagements equally with a private individual ; it cannot 
be relieved from them by any assertion of its sovereign authority. 

" Its relation to the original Central Pacific Company, and to the present 
company as its successor, in the construction and equipment of its road, 
and its use for public purposes, was and is that of a contractor, and the 



240 

riglits and obligations of both are to be measured, as in the case of sim- 
ilar relations between other parties, b^" the terms and conditions of the 
contract. 

" By the first section of the original railroad act of Congress, passed in 
July, 1862, certain persons therein designated were created a corporation 
by the name of the Union Pacific Railroad Company, and authorized to 
construct and operate a continuous railroad and telegraph line from a 
designated point on the 100th meridian of longitude west from Green- 
Avich to the eastern boundary of Nevada Territory, and were invested 
with the powers, privileges, and immunities necessary for that purpose, 
and with such as are usually conferred upon cori^orations. 

" By subsequent provisions of the act and the amendatory act of 1864, 
three grants were made to the company thits created : a grant of a right- 
of-way over the public lands of the United States for the road and tele- 
graph line ; a grant of ten alternate sections of land on each side of the 
road, to aid in its construction and that of the telegraph line; and a grant 
of a certain number of subsidy bonds of the United States, each in the 
sum of one thousand dollars, payable in thirty years, with semi-annual 
interest — patents for the lands and the bonds to be issued as each twenty 
consecutive miles of the road and telegrai^h should be completed. These 
grants were made upon certain conditions as to the completion of the 
road and telegraph line, their construction and use by the government, 
and their pledge as security for the ultimate payment of the bonds. They 
were the considerations offered by the government to the company for 
the work which it undertook. 

" By the act which thus incorporated the Union Pacific Company, and 
made the grants mentioned, the United States proposed to the Central 
Pacific that it should construct in like manner a railroad and a telegr.iph 
line through the State of California from a point near the Pacific Coast to 
its eastern boundary, upon the same terms and conditions, and after com- 
pleting them across the State, to continue their construction through the 
territories of the United States until they should meet and connect with 
the road and telegraph line of the Union Pacific. 

" They, in eftect, said to the company, that if it would construct a rail- 
road and a telegraph line from the Pacific Ocean ea.stward to a connection 
with the Union Pacific— the road to be in all respects one of first class — 
and keep them in repair, so that they could be used at all times by anj^ 
department of the government for the transmission of despatches and the 
transportation of mails, troops, munitions of war, supplies, and public 
stores, at reasonable rates of compensation, not exceeeding such as were 
charged private persons for similar services, and allow the government at 
all times the preference in the use of the road and telegraph, — they would 
grant the company a right-of-way over the public lands for the construc- 
tion of the road and telegraph line, and grant to it ten alternate sections 
of land on each side of the road, and give it their bonds, each for the sum 
of $1,000, payable thirty years after date, with semi-annual interest, such 



241 

bonds to bo issued at tbe rate ofsixteen, thirty-two, or lbrty-ei<^bt the mih^, 
accordiiif!; to the character of the country' over wliich the road shoiihl be 
constructed ; and would issue patents for the hinds, and the subsidy bonds 
as each twenty consecutive miles of the road and telej^raph should be com- 
pleted in the manner prescribed ; it being agreed that the company should 
jiay the bonds as they should mature, and that for the security of their 
payment they should constitute a second mortgage upon the whole line 
of the road and telegraph, and that one-half of the compensation earned 
for services to the government, and, after the completion of the road, five 
per cent, of its net earnings should be retained and applied to the pay- 
ment of the bonds; and also, that the company should complete the road 
by the first of July, 187G, and keep it in repair and use thereafter, or 
upon failure to do so, that the government might take possession of the 
road and complete it, or keep it in repair and use as the case might be. 
And they farther, in etfect, said that if these terms and conditions were 
satisfactory, the company should file its written acceptance thereof with 
the Secretary of the Interior, within six mouths thereafter ; and that 
thereupon there should be a contract between them. 

" This proposition of the government the Central Pacific accepted, and 
filed its acceptance as required, and thereupon the provisions of the act 
became a contract between it and the United States, as complete and per- 
fect as could be made by the most formal instrument. The United States 
thus came under obligation to the company to make the grants and issue 
the bonds stipulated, upon the construction of the road and telegraph 
line in the manner prescribed. The corporate capacity of the company 
in no respect aftected the nature of the contract, or made it iu anj' par- 
ticular diftereut from what it would have been had a natural person been 
one of the parties. The company was not a creature of the United States, 
and Congress could neither add to nor subtract from its corporate powers. 
The exercise of the right of eminent domain allowed in the Territories 
was not the exercise of a corporate power. That right belongs to the 
sovereign authority, and whoever exercises it does so as the agent of that 
sovereignty. Nor was its character as a State institution changed by the 
fact that it was permitted by Congress to extend its road through the 
territory of the United States. This permission was no more than the 
license which is usually extended by positive agreement, or by comity in 
the absence of such agreement, by one State to the corporations of another 
State, to do business and own property in its jurisdiction. Such license 
is not the source of the corporate powers exercised. Insurance companies, 
express companies, and, indeed, companies organized for almost every 
kind of business, are, by comity, permitted throughout the United States, 
and generall}' throughout the civilized world, to do business, make con- 
tracts, and exercise their corporate powers in a jurisdiction where, iu a 
strict legal sense, they have no corporate existence. The Pacific Mail 
Steamship Company, for example, to take an illustration mentioned bj' 
counsel, is a corporation created under the laws of the State of Xew York, 
IB 



242 

and, like the Central Pacific, has been subsidized by the United States. 
Its ships visit Central America, California, Japan, and China, and in all 
these places it leases or owns wharves and makes and enforces contracts 
necessary to the transaction cf its business, yet no one has ever pretended 
or suggested that it derived any of its corporate powers from the United 
States, or from the authorities of any of the places named. By consent 
of those authorities, expressed in terms, or implied in what is understood 
as their comity, it exercises powers derived solely from the State of New 
York. 

"When, therefore. Congress assented to the extension into the territory 
of the United States of the road which the Central Pacific was authorized 
by its charter to construct in California, it was deemed important for the 
company to obtain also the consent and authority of the State to act with- 
out its limits and assume respon.sibilities not originally contemplated. 
Accordingly, in 1864. the legislature of the State at its second session 
after the adoi)tion of the original railroad act of Congress, in order to en- 
able the company to comply with its provisions and conditions, author- 
ized the company to construct, maintain, and operate the road in the ter- 
ritory lying east of the State, and invested it with rights, privileges, and 
powers granted by the act of Congress, with the reservation, however, 
that the company should be subject to all the Inirs of the State concerning 
railroad and telegraph lines, except that messages and property of the 
United States, of the State, and of the company should have priority of 
transmission and transportation. The extent of the power which was 
thus reserved we shall hereafter consider. It is sufficient at present to 
observe that it was as ample and complete as it is possible for one sov- 
ereignty to exert over institutions of its own creation, and that its exer- 
cise is incompatible with the control asserted by the law of Congress of 
1878, which has given rise to the present suit. 

" The Central Pacific Company having accepted, as already stated, the 
conditions proflered by Congress, proceeded at once to the execution of 
its contract. In the face of great obstacles, doubts, and uncertainties its di- 
rectors commenced and prosecuted the work, and within a period several 
years less than that prescribed, its telegraph line and road were completed, 
the latter with all the appurtenances of a first-class road, and were ac- 
cepted by the government. Patents for the land granted, and the sub- 
sidy bonds mentioned, were accordingly issued to the company. Since 
then the road and telegraph line have been kept in repair and use and the 
government has enjoyed all the privileges in the transmission of des- 
patches over the telegraph, and in the transportation of mails, troops, 
munitions of w ar, supplies, and public stores over the road, which were 
stipulated. There has been no failure on the part of the company to 
comply with its engagements, nor is any complaint of delinquency or ne- 
glect in its action made by the government. The road is more valuable 
now than on the day of its completion ; it has been improved in its rails, 
bridges, cars, depots, turn-outs, machine-shops, and all other appurte- 



24:] 

nances. Its earnin;L>;s havt' been constantly incrca.siiiji;, and it constitutes 
to-day a far bi-tter security to the United States for the nitiinate payment 
of the subsidy bonds than at anj' period since its comph-tion, and to the 
government it has caused, with the connecting road of the Union Pacilh-, 
an immense saving of expense. The records of the ditTerent departments 
show an annual saving, as compared with previous expenditures, in the 
item of transportation alone of the mails, troops, and public stores, of five 
millions, aggregating at this day over fifty millions of dollars. 

" Whilst the company was thus complying in all respects with its en- 
gagements, the act of May 7, 1878, was passed, altering in essential par- 
ticulars the contract of the company and greatly increasing its obligations. 
By the contract only one-half of the compensation for transportation for 
the government is to be retained and applied towards the payment of the 
bonds. Bj' the act of 1878 the whole of such compensation is to be re- 
tained and thus applied. By the contract five per cent, onh' of the net 
earnings of the road are to be paid to the United States to be applied upon 
the subsidy bonds. By the act of 1878 twenty-five per cent, of the net 
earnings are to be thus paid and applied. By the contract the only secu- 
ritj^ Avhich the governmenti had for its subsidy bonds was a second mort- 
gage on the road audits appurtenances and telegraph line ; and the com- 
pany was allowed to give a first mortgage as security for its own bonds, 
issued for an equal amount^ Bj^ the act of 1878 additional security is re- 
quired for the ultimate payment of its own bonds, and the subsidy bonds 
of the United States, by the creation of what is termed :i sinking fund, 
that is, by compelling the company to deposit twelve hundred thousand 
dollars a year in the treasury of the United States, to be held for such 
payment, or so much thereof as may be necessary to make the five per 
cent, net earnings, the whole sum earned as compensation tor services, and 
sufficient in addition to make the whole reach twenty-live per cent, of 
the net earnings. 

'■ It is not material, in the vie^v I take of the subject, whether the de- 
posit of this large sum in the treasury of the creditor be termed a pay- 
ment, or something else. It is the exaction from the company of money 
for which the original contract did not stipulate which constitutes the 
objectionable feature of the act of 1878. The act thus makes a great 
change in the liabilities of the company. Its purpose, however disguised, 
is to coerce the payment of money years in advance of the time prescribed 
by the contract. That such legislation is beyond the power of Congress I 
cannot entertain a doubt. The clauses of the original acts reserving a right 
to Congress to alter or amend them do not, in my judgment, justify the 
legislation. The power reserved under these clauses is declared to be for a 
specific purpose. The language in the act of 1862 is as follows : 'And the 
better to accomi^lish the object of this act, to promote the public interest 
and welfare by the construction of said railroad and telegraph line, and 
keeping the same in working order, and to secure the government at all 
times (but particularly in time of war") the use and benefits of the same 



244 

for postal, military, and other purposes, Congress may at any time — hav- 
ing due regard lor the rights of said companies named herein — add to, 
alter, amend, or repeal this act.' — (Sec. 18.) The language of the amend- 
atory act of 1864 is more general : ' That Congress may at any time alter, 
amend, or repeal this act.' The two acts are to be read together ; they 
deal with the same subject ; and are to be treated as if passed at the same 
time.— (IVescott vs. Railroad Co., 16 AVall., 603.) The limitations, there- 
fore, imposed upon the exercise of the power of alteration and amendment 
in the act of 1862 must beheld to apply to the power reserved in the act 
of 1864. They are not repealed, either expressly or impliedly, by any- 
thing in the latter act. If this be so, the legislation of 1878 can find no 
support in the clauses. The conditions upon which the reserved power 
could be exercised under them did not then exist. The road and tele- 
graph had years before been constructed, and always kept in working 
order ; and the government has at all times been secured in their use and 
benefits for postal, military, and other purposes. 

" But if the reserved power of alteration and amendment be consid- 
ered as freed from the limitations designated, it cannot be exerted to aflfect 
the conti'act so far as it has been executed, or the rights vested under it. 
When the road was completed in the manner prescribed and accepted, 
the company became entitled as of right to the land and subsidy bonds 
stipulated. The title to the land was perfection the issue of the patents ; 
the title to the bonds vested on their delivery. Any alteration of the acts 
under the reservation clauses, or their repeal, could not revoke tlie title 
to the land or recall the bonds or change the right of the company to 
either. So far as these are concerned the contract was, long before the 
act of 1878, an executed and closed transaction, and they were as much 
beyond the reach of the government as any other property vested in pri- 
vate proprietorship. The right to hold the subsidy bonds for the period 
at which they are to run without paying or advancing money on them 
before their maturity, except as originally provided, or furnishing other 
security than that originally stipulated, was, on their delivery, as perfect 
as the right to hold the title to the land patented unencumbered by fu- 
ture liens of the government. Any alteration or amendment could only 
operate for the future and affect subsequent acts of the company ; it could 
have no operation upon that which had already been done and vested. 

" There have been much discussion and great difference of opinion on 
many points as to the meaning and effect of a similar reservation in 
statutes of the States, but on the point that it does not authorize any 
interference with vested rights all the authorities concur. Such was 
the language of Chief Justice Shaw in the case cited from the Supreme 
Court of Massachusetts; and such is the language of Mr. Justice Clifford 
in the cases cited from this court. And such must be the case or there 
would be no safety in dealing with the government where such a clause 
is inserted in its legislation. It could undo at pleasure everything done 
under its authority, and despoil of their property those who had trusted 



245 

to its Hiitli. — (Esspx Co. vs. The Comiuonwealtli, l.'J (jlray, 25:{ ; Miller vs. 
The State, 15 Wall., 4!)8 ; Kolyoke Co. vs. Lyman, Ibid., 52:> ; see also 
Shields vs. Ohio, 95 U. S., 324, and Sage vs. Dillard, 15 B. Monroe, 35.) 

" The ol)j(ct 1)1' a reservation of this kind in acts of incorporation is to 
insure to the governnient control over corporate franchises, rights, and 
privileges which, in its sovereign or legislative capacity, it may call into 
existence, not to interfere with contracts which the corporation created 
by it may make. Such is the purport of our language in Tomlinson vs. 
.Jessup, where we state the object of the reservation to be ' to prevent a 
grant of corporate rights and privileges in a form which will preclude 
legislative interference with their exercise, if the public interest should at 
any time require such interference,' and that ' the reservation atfects the 
entire relation between the State and corporation, and places under legis- 
lative control all rights, privileges, and immunities derived hy Us charter 
directly from the State.'' — (15 Wall., 454.) The same thing we repeated, 
with greater distinctness, in the case of The Railroad Company vs. Maine, 
where we said that by the reservation the State retained the power to 
alter the act incorporating the company, in all particulars constituting the 
ffranf to it of corporate rights, privileges, and immunities ; and that 'the 
existence of the corporation, and its franchises and immunities, derived 
directly from the State, were thus kept under its control.' But, we added, 
that ' rights and interests acquired by the company, not constituting apart 
of the contract of incorporation, stand upon a diiferent footing.' — (96 U. S., 
499.) 

" Now, there was no grant by the United States to the Central Pacitic 
Company, of corporate rights, privileges, and immunities. No attribute 
of sovereignty was exercised by them in its creation. It took its life, and 
all its attributes and capacities, from the State. Whatever powers, rights, 
and privileges it acquired from the United States it took under its con- 
tract with them and not otherwise. The relation between the parties be- 
ing that of contractors, the rights and obligations of both, as already 
stated, are to be measured by the terms and conditions of the contract. 
And when the government of the United States entered into that con- 
tract, it laid aside its sovereignty and put itself on terms of equality with 
its contractor. It was then but a civil corporation, as incapable as the 
Central Pacific of releasing itself from its obligations, or of finally deter- 
mining tiieir extent and character. I; could not, as justly observed by 
one of the counsel who argued this case, ' release itself and hold the other 
party to the contract. It could not change its obligations and hold its 
rights unchanged. It cannot bind itself as a civil corporation, and loose 
itself by its sovereign legislative power.' This principle is aptly ex- 
pressed by the great conservative statesman, Alexander Hamilton, in his 
report to Congress on the public credit, in 1795 : ' When a government,' 
he observes, ' enters into a contract with an individual, it deposes, as to 
the matter of the contract, its constitutional authority, and exchanges 
the character of legislator for that of a moral agent, with the same rights 



246 

and obligations as an individual. Its promises may be justly considered 
out of its power to legislate, unless in aid of them. It is, in theory, im- 
possible to reconcile the two ideas of a promise ichich obliges with a power 
to make a law which can vary the effect of i<.'— (Hamilton's Works, vol. 3, 
p. 518, 519.) 

" When, therefore, the government of the United States entered into 
the contract Avith the Central Pacific, it could no more than a private cor- 
poration or a private individual finally construe and determine the extent 
of the company's rights and liabilities. If it had cause of complaint 
against the company, it could not undertake itself, by legislative decree, 
to redress the grievance, but was compelled to seek redress as all other 
civil corporations are compelled, through the judicial tribunals. If the 
con?i)any was wasting its property, of which no allegation is made, or 
impairing the security of the government, the remedy by .suit was am- 
ple. To declare that one of two contracting parties is entitled, under 
the contract between them, to the iiaynient of a greater sum than is ad- 
mitted to be payable, or to other or greater security than that given, is 
not a legislative function. It is a judicial action; it is the exercise of 
judicial power — and all such power, with respect to any transaction aris- 
ing under the laws of the United States, is vested by the Constitution in 
the courts of the country. 

" In the case of The Commonwealth vs. The Proprietors of New Bedford 
Bridge, a corporation of Massachusetts, the supreme court of that State, 
speaking with reference to a contract between the parties, uses this lan- 
guage : ' Each has equal rights and privileges under it, and neither can 
interpret its terms authoritatively so as to control and bind the rights of 
the other. The Commonwealth has no more authority to construe the 
charter than the corporation. By becoming a party to a contract with its 
citizens, the government divests itself of its sovereignty in respect to the 
terms and conditions of the contract and its construction and interpreta- 
tion, and stands in the same position as a private individual. If it were 
otherwise, the rights of parties contracting with the government would 
be held at the caprice of the sovereign, and exposed to all the risks aris- 
ing from the corrupt or ill-judged use of misguided power. The inter- 
pretation and construction of contracts when drawn in question belong 
exclusively to the judicial department of the government. The legisla- 
ture has no more power to construe their own contracts with their citi- 
zens than those which individuals make with each other. They can do 
neither without exercising judicial powers which would be contrary to 
the elementary principles of our government, as set fortli in the Declara- 
tion of Rights.'— (2 Gray, 350.) 

" In that case the charter of the corporation authorized the building 
of a toll-bridge across a navigable river, with two suitable draws at least 
thirty feet wide. A subsequent act required draws to be made of a greater 
width ; but the court held that the question whether the draws already 
made were suitable, and constructed so as not iinreasonable or unnec- 



247 

essarily to obstruct or iinpodc public nuvigatiou, was not u question to be 
determined by the legislature, or by the cor])oration, but by the courts. 
It was a (luestion whicii could not l)e authoritatively determined by either 
party so as to control and liiiid tlie other, 'Like all other matters in- 
volvinjj; a controversy concerninii' pul)licduty and pri\ate rights,' said the 
court, 'it is to be adjusted and settled in the regular tribunals, where 
questions of law and fact are adjudicated on fixed and established prin- 
ciples, and according to the forms and usages best adapted to secure the 
imi)artial administration of justice.' In the case at bar, the government, 
by the act of 1878, undertakes to decide authoritatively what the obliga- 
tions of the Central Pacific are, and in eftect declares that if the direc- 
tors of the company do not respect its construction, and obey its man- 
dates, founded upon such construction, they shall be subject to fine and 
imprisonment. 

" Tlie distinction between a judicial and a legislative act is well defined. 
The one determines what the law is, and what the rights of parties are, 
with reference to transactions already had ; the other prescribes what the 
law shall be in future cases arising under it. Wherever an act under- 
takes to determine a question of right or obligation, or of property, as the 
foundation upon which it proceeds, such act is to that extent a judicial 
one, and not the proper exercise of legislative functions. Thus an act of 
the Legislature of Illinois authorizing the sale of the lands of an intes- 
tate, to raise a specific sum, to pay certain parties their claims against the 
estate of the deceased for moneys advanced and liabilities incurred, was 
held unconstitutional on the ground that it involved a judicial deter- 
mination that the estate was indebted to those parties for the moneys ad- 
vanced and liabilities incurred. The ascertainment of indebtedness from 
one party to another, and a direction for its payment, the court consid- 
ered to be judicial acts whicli could not be performed by the legislature. — 
(3 Scam., 238.) So also an act of the Legislature of Tennessee authoriz- 
ing a guardian of infant heirs to sell certain lands of which their ances- 
tors died seized, and directing the proceeds to be applied to the payment 
of the ancestor's debts, was, on similar grounds, hehl to be unconstitu- 
tional. — (Jones vs. Perry, 10 Yerger, 59.) Tested by the principles thus 
illustrated the act of 1378 must be held in many ways to transcend the 
legislative power of Congress. 

" I cannot assent to the doctrine which would ascribe to the federal 
government a sovei-eign right to treat as it may choose corporations with 
which it deals, and would exempt it from that great law of morality 
which should bind all governments, as it binds all individuals, to do 
justice and keep faith. Because it was deemed important, on the adop- 
tion of the Constitution, in the light of wdiat was known as tender laws, 
appraisement laws, stay laws, and installment laws of the States, which 
Story says had prostrated all private credit and all private morals, to in- 
sert a clause prohibiting the States from passing any law impairing the 
obligation of contracts, and no clause prohibiting the federal government 



248 

from like legislation is found, it is argued that no such prohibition upon 
it exists. 

" ' It is true,' us I had occasion to observe in another case, ' there is no 
provision in the Constitution forbidding in express terms such legislation. 
And it is also true that there are express powers delegated to Congress, 
the execution of which necessarily operates to impair the obligation of 
contracts. It was the object of the framers of that instrument to create 
a national government, competent to represent the entire country in its 
relations with foreign nations and to accomplish by its legislation measures 
of common interest to all the people, which the several States in tlieir in- 
dependent capacities were incapable of effecting, or if capable, the execu- 
tion of which would be attended with great difficulty and embarrassment. 
They, therefore, clothed Congress Avith all the powers essential to the 
successful accomplishment of these ends, and carefully withheld the 
grant of all other powers. Some of the powers granted, from their very 
nature, interfere in their execution with contracts of parties. Thus war 
suspends intercourse and commerce between citizens or subjects of bellig- 
erent nations; it renders during its continuance the performance of con- 
tracts previously made, unlawful. These incidental consequences were 
contemplated in the grant of the war power. So the regulation of com- 
merce and the imposition of duties may so affect the prices of articles 
imported or manufactured as to essentially alter the value of previous 
contracts respecting them; but this incidental consequence was seen in 
the grant of the power over commerce and duties. There can be no valid 
objection to laws passed in execution of express powers, that consequences 
like these follow incidentally from their execution. But it is otherwise 
when such consequences do not follow incidentally, but are directly en- 
acted.' 

" ' The only express authority for any legislation affecting the obligation 
of contracts is found in the power to establish a uniform system of bank- 
ruptcy, the direct object of which is to release insolvent debtors from 
their contracts upon the surrender of their property.' — (12 Wallace, 663.) 
From this express grant in the case of bankrupts the inference is deduc- 
ible that there was no general power to interfere with contracts. If such 
general power existed there could have been no occasion for the delega- 
tion of an expre.ss power in the case of bankrupts. The argument for the 
general power from the absence of a special prohibition proceeds upon a 
misconception of the nature of the federal government as one of limited 
powers. It can exercise only such powers as are specifically granted or 
are necessarily implied. All other powers, not prohibited to the States, 
are reserved to them or to the people. As I said in the case referred to, 
the doctrine that where a power is not expressly forbidden it may be ex- 
ercised, would change the whole character of our government. Accord- 
ing to the great commentators on the Constitution, and the opinions 
of the great jurists, who have studied and interpreted its meaning, the 
true doctrine is, that where a power is not in terms granted, and is not 



249 

necessary or proper for the exercise of ;i power tlins granted, it does not 
exist. It would not be pretended, for example, had there been no amend- 
ments to the Constitution as originally adopted, that Congress could have 
passed a law respecting an establishment of religion or prohibiting the 
flee exercise thereof or abridging the freedom of speech, or the right of 
the people to assemble and petition for a redress of grievances. The 
amendments prohibiting the exercise of any such power were adopted in 
the language of the preamble accompanying them, when presented to 
the States, ' in order to prevent misconception or almse' of the jtowers of 
the Constitution. 

" Independent of these A'iews, there are many considerations whi(;h 
lead to the conclusion that the power to impair contracts, by direct action 
to that end, does not exist with the general government. In the tirst 
place, one of the objects of the Constitution, expres.sed in its ju-eamble, 
was the establishment of justice, and what that meant in its relations to 
contracts is not left, a-s was justly said by the late Chief .Tustice, in Hep- 
burn A's. Griswold, to inference or conjecture. As he observes, at the 
time the Constitution was undergoing discussion in the Convention, the 
Congress of the Confederation was engaged in framing the ordinance for 
the government of the Northwestern Territory, in which certain articles 
of compact were established between the people of the original States and 
the people of the territory, for the purpose, as expres.sed in the instru- 
ment, of extending the fundamental principles of civil and religious lib- 
erty, upon which the States, their laws and constitutions, were erected. 
By that ordinance it was declared, that in the just preservation of rights 
and property, ' no law ought ever to be made, or have force in the said 
territory, that shall, in any manner, interfere with or affect private con- 
tracts or engagements bona fide and without fraud previousl}' formed.' 
The same provision, adds the Chief Justice, found more condensed ex- 
pression in the prohibition upon the States against imjiairing the obliga- 
tion of contracts, which has ever been recognized as an efficient safeguard 
against injustice, and. though the prohibition is not applied in terms to 
the government of the United States, he expressed the opinion, speaking 
for himself and the majority of the court at the time, that it was clear 
' that those who framed and those who adopted the Constitution, intended 
that the spirit of this prohibition should pervade the entire body of legis- 
lation, and that the justice which the Constitution was ordained to estab- 
lish was not thought by them to be compatible with legislation of an op- 
posite tendency.' — (8 Wallace, 623.) 

"Similar views are found expressed in the opinions of other judges of 
this court. In Calder vs. Bull, which was here in 1798, Mr. Justice Chase 
said, that there were acts which the federal and State legislatures could 
not do without exceeding their authority, and among them he mentioned 
a law which punished a citizen ibr an innocent act ; a law that destroyed 
or impaired the lawful private contracts of citizens ; a law that made a 
man judge in his own case ; and a law that took the property from A and 



250 

gave it to P>. ' It is against all reason and justice,' he added, ' for a peo- 
ple to entrust a legislature witn such powers, and, therefore, it cannot be 
presumed that they have done it. They may command what is right and 
prohibit what is wrong ; but they cannot change innocence iuto guilt or 
punish innocence as a crime, or violate the right of an antecedent lawful 
private contract, or the right of private property. To maintain that a 
federal or State legislature possesses such powers if they had not been 
expressly restrained, would, in my opinion, be a political heresy alto- 
gether inadmissible in all free republican governments.' — (3 Dallas, 388.) 

" In Ogden vs. Saunders, Avhich was before this court in 1827, Mr. Jus- 
tice Thompson, referring to the clauses of the Constitution prohibiting 
the State from passing a bill of attainder, an ex post facto law, or a law 
impairing the obligation of contracts, said : ' Neither provision can strictly 
be considered as introducing any new principle, but only for greater 
security and safety to incorporate into this charter provisions admitted 
by all to be among the first principles of our government. No State 
court would, I presume, sanction and enforce an ex post facto law, if no 
such prohibition was contained in the Constitution of the United States; 
so, neither would retrospective laws, taking away vested rights, be 
enforced. Such laws are repugnant to those fundamental principles 
upon which every just system of laws is founded.' 

"In the Federalist, Mr. Madison declared that laws impairing the 
obligation of contracts were contrary to the first principles of the social 
compact and to every principle of sound legislation ; and in the Dart- 
mouth College case Mr. Webster contended that acts, which were there 
held to impair the obligation of contracts, were not the exercise of a 
power properly legislative, as their object and effect was to take away 
vested rights. 'To justify the taking away of vested rights,' he said, 
' there must be a forfeiture, to adjudge upon and declare which is the 
proper province of the judiciary.' Surely the Constitution would have 
failed to establish justice had it allowed the exercise of such a dangerous 
power to the Congress of the United States. 

" In the second place, legislation impairing the obligation of contracts 
impinges upon the provision of the Constitution which declares that no 
one shall be deprived of his property without due process of law ; and 
that means by law in its regular course of administration through the 
courts of justice. Contracts are property, and a large portion of the 
wealth of the country exists in that form. Whatever impairs their value 
diminishes, therefore, the property of the owner, and if that be effected 
by direct legislative action operating upon the contract, forbidding its 
enforcement or transfer, or otherwise restricting its use, the owner is as 
much deprived of his property without due process of law as if the con- 
tract were impounded, or the value it represents were in terms wholly or 
partially confiscated. 

" In the case at bar the contract with the Central Pacific is, as I have 
said, changed in essential particulars. Tlie company is compelled to ac- 



251 

cept it in its cluingcd form, and by Icgi.slutivc decree, without the inter- 
vention of the courts, that is, witliout dvie process of law, to pay out of 
its earnings each year to its contractors, the United States, or deposit with 
them, a sum that may amount to twelve hundred thousand dollars, and 
this, twenty years before the debt to w hicli it is to be applied bcconics 
due and payable by the company. If tliis taking of the earnings of the 
company and keeping them from its use during these twenty years to 
come is not depriving the company of its i)roperfy. it would be difficult 
to give any meaning to the provision hi' the Constitution. It will only be 
necessary hereafter to give to the seizure of another's property or earnings 
a new name— to call it the creation of a sinking fund, or the providing 
against the possible wastefulness or improvidence of tlie owner— to get 
rid of the constitutional restraint. To my mind the evasion of 1 hat ( lausc, 
the frittering away of all sense and meaning to it, arc iusupcralilc objec- 
tions to the legislation of Congress. Where contracts are impaired, or 
when operating against the government are sought to be evaded and 
avoided by legislation, a blow is given to the security of all projjorty. 
If the government will not keep its faith, little better can be exiiected 
from the citizen. If contracts are not observed, no property will in the 
end be respected; and all history shows that rights of person are unsafe 
where property is insecure* Protection to one goes with protection to 
the other ; and there can be neither prosperity nor progress where this 
foundation of all just government is unsettled. ' The moment,' said the 
elderAdams, 'the idea is admitted into society that property is not as 
sacred as the laws of God, and that there is not a force of law and public 
justice to protect it, anarchy and tyranny commence.' 

" I am aware of the opinion which prevails generally that the Pacific 
railroad corporations have, by their accumulation wealth, and the num- 
bers in their employ, become so powerful as to be disturbing and danger- 
ous influences in the legislation of the country ; and that they should, 
therefore, be brought by stringent measures into subjection to the State. 
This may be true ; I do not say that it is not ; but if it is, it furnishes no 
justilication for the repudiation or evasion of the contracts made with 
them by the government. The law that protects the wealth of the most 
powerful, protects also the earnings of the most humble; and the law 
which would confiscate the property of the one would in the end take the 
earnings of the other. 

" There are many other objections to the act of Congress besides those 
I have mentioned— each to my mind convincing — but why add to what 
has already been said. If the reasons given will not convince, neither 
would any others which could be presented. I w ill, tlu-refore, refer only 
to the interference of the law with the rights of the State of California. 

" The Central Pacific being a State corporation, the law creating it is, by 
the constitution of California, subject to alteration, amendment, and re- 
peal by its legislature at any time— a power which the legislature can 
neither abdicate nor transfer. In its assent given to the company to ex-. 



252 

tend its road into the territory of the United States— the general govern- 
ment having authorized the extension— the legislature reserved the tome 
control which it possesses over other railroad and telegraph companies 
created hy it. That control under the new constitution, goes, as is claimed, 
■ to tlxe extent of regulating the fares and freights of the company, thus 
linaiting its income or earnings; and of supervising all its husiness, even 
to the keeping of its accounts, making disobedience of its directors to the 
regulations established for its management punishable by fine and im- 
prisonment ; and the legislature may impose the additional penalty ol" a 
forfeiture of the franchises and privileges of the company. The law in 
existence when the corporation was created, and still in force, requires the 
creation of a sinking fund by the company to meet its bonds, and under 
it large sums have been accumulated for that purpose, and still further 
sums must be raised. In a word, the law of the State undertakes to con- 
trol and manage the corporation, in all particulars required for the ser- 
vice, convenience, and protection of the public ; and can there be a doubt 
in the mind of any one that over its own creations the State has, within 
its own territory, as against the United States, the superior authority ? 
Yet the power asserted by the general government in the passage of the 
act of 1878 would justify legislation affecting all the affairs of the com- 
pany, both in the State and in the Territories of the United States. It 
could treble the amount of the sum to be annually deposited in the sink- 
ing fund ; it could command the immediate deposit of the entire amount 
of the ultimate indebtedness ; it could change the order of the liens held 
by the government and the first mortgage bondholders ; it could extend 
the lien of the government beyond the property to the entire income of 
the company, and, in tact, does so by the act in question (sec. 9) ; it could 
require the transportation for the government to be made without com- 
pensation, and it could subject the company to burdens which, if antici- 
pated at the time, would have prevented the construction of the road. 
A power thus vast, once admitted to exist, might be exerted to control the 
entire affairs of the company, in direct conflict with the legislation of the 
State ; its exercise would be a mere matter of legislative discretion in 
Congress. Yet it is clear that both governments cannot control and man- 
age the company in the same territory, subjecting its directors to fine and 
imprisonment for disobeying their regulations. Under the Constitution 
the management of local affairs is left chiefly to the States, and it never 
entered into the conception of its framers that under it the creations of 
the States could be taken from their control. Certain it is that over no 
subject is it more important for their interests that they should retain the 
management and direction tlian over corporations brought into existence 
by them. The decision of the majority goes a great way— further, it ap- 
pears to me, than any heretofore made by the court — to weaken the au- 
thority of the States, in this respect, as against the will of Congress. Ac- 
cording to n\y understanding of its scope and reach, the United States 
have only to make a contract with. a State corporation, and a loan to it. 



to onst tlic .jurisdiction of'tlic F^tate, and ])laoe flic corporation under tlicir 
direction. It would seem plain that if Ic-jislation. taking institutions of 
the State from its control, can be sustained l)y this court, the <iovcnHnent 
will drift from the limited and well-guarded system estahlished hy our 
fathers into a centralized and consolidated governmonl." 



A letidiiig- JDiii'iial of California thus speaks of the in- 
vasion made by the (U-eision of the eonrt npon the riu'hts 
of the State of C'ahhnniia, to whirh the (hssentinjj,- o[)ini()n 
refers : 

"The position taken l)y him [Judge Field] npon the question of con- 
"■ressional invasion of State sovereignty is one which would l)eyond doubt 
luive ranged the framers of the United States Constitution upon his side, 
and it includes a revelation of dangers and perplexities which sober men 
will do well to heed, and which it behooves every earnest politician to 
study seriously, because of the certainty of the approaching importance 
of this aud similar questions, in both State and national alitairs. The ar- 
gument of Judge Field in regard to the peculiar relations existing be- 
tween the Central Pacific, the State, and Congress, ought indeed to be 
mastered thoroughly by all who desire to keep themselves informed con- 
cerning the nature of the movements by which the original character -of 
the union between the States is being changed, and a centralized govern- 
ment is being gradually erected upon the wrecks of State sovereignty, 
alreadj' little more than an empty nanie. 

" In the first place. Judge Field points out that the Central Pacific was 
a creature of the State, and not of the United States. It draws its pow- 
ers and its life from California, not from Congress. ' There was no grant 
by the United States to the Central Pacific Company of corporate rights, 
privileges, and immunities. No attribute of sovereignty was exercised 
by them in its creation. It took its life and all its attributes and ca- 
pacities from the State. Whatever power, rights, aud privileges it ac- 
quired from the United States it took under its contract with them, and 
not otherwise.' This is the key to the argument. Here is a distinct 
exercise of State sovereignty, not lapsed, or dormant, or inchoate, but in 
active, present operation. At every step this State sovereignty is affirmed 
and acted upon. It is made the basis of legislation. It is made the basis 
for radical changes in the organic law. The right of the State to deal 
with the corporations it has created, and whose charters it can ' alter, 
amend, or repeal ' at will, does not seem a question concerning which 
there can be two opinions. And yet this very question has been raised 
in the decision of the Supreme Court on the Thurman act, and not only 
raised, but settled adversely to the right of the State to control its own 
creatures. As the State has nevertheless undertaken to exercise such con- 



254 

trol very vigorously, and as during the coming session ol' the legislature 
that right must be still further exerted, it is evident that the importance 
of this whole question is very considerable. And now let us hear Judge 
Field upon this topic somewhat further : ' The Central Pacific being a 
State corporation, the law creating it is, by the constitution of Califor- 
nia, subject to alteration, amendment, and repeal by its legislature at 
any time— a power which the legislature can neither abdicate nor trans- 
fer. In its assent given to the company to extend its road into the ter- 
ritory of the United States — the general government authorizing the ex- 
tension — the legislature reserved the same control which it possesses 
over other railroad and telegraph companies created by it. That con- 
trol, under the new Constitution, goes, as is claimed, to the extent of 
regulating the fares and freights of the company, thus limiting its in- 
comes or earnings ; and of supervising all its business, even to the kaep- 
ing of its accounts, making disobedience of its directors to the regula- 
tions established for its management punishable by tine and imprison- 
ment ; and the legislature may impose the additional penalty of a for- 
feiture of the franchises and privileges of the company.' 

" Here are two distinct and necessarily antagonistic authorities set up, 
both claiming control of the .same corporation. And it is perfectly evi- 
dent that the assumption by Congress of the right to interfere with a 
creation of the State involves the assumption of a right to carry the .same 
interference to such lengths as may destroy the last pretence of State 
sovereignty. In this case Congress interferes to compel the payment of 
a debt before it is due, in open violation of a solemn contract. Having 
undertaken to perpetrate an act of such marked injustice towai'd the cor- 
poration, it is at least possible that so reckless and irresponsible a body 
maj^ err as widely on the other side at some future time. For if Con- 
gress can supersede the rights of the State, it certainly can ignore the 
interests of the State ; and the disposition to do the tir.st implies no serious 
disinclination to proceed to the second. Congress in short can, under the 
ruling of the court, so alter the conditions of the Central Pacific Company 
by imposts and burdens, that it shall be disabled either from meeting its 
obligations or operating its roads ; and it will be in vain for the State to 
protest against this legislation. Indeed, it becomes a highly important 
question whether, under this decision, the ensuing legislature can venture 
to handle the railroad question at all, for Congress has in practice formally 
assumed control of the subject. As Judge Field says : ' Under the Consti- 
tution the management of local affairs is left chiefly to the States, and it 
never entered into the conception of its framers that under it the creations 
of the States could be taken from under their control. Certain it is that 
over no subject is it more important for their interests that they should 
retain the managemt5nt and direction than over corporations brought into 
exi.stence ))y them. The decision of the majority goes a great way — 
further, it appears to me, than any heretofore made by the court — to 
weaken the authority of the States, in this respect, as against the will 



of Congress. According to my lUKkTstaiuling of its .-coix' and roacli, 
tlie United States has only to make a contniet with a State corporation 
and a loan to it, to oust the jurisdiction of the State and place the cor- 
p(n-ation under their their direction.' It is searcejy pdssihle to eseajic 
from this conclusion, or to perceive where the ri.nht of cnugressujual in- 
teiferenee can he ehecked, after going so far. Nor is this the only serious 
viow of the matter imiiosed on the State. For what Congress has 
done is practically to undertake the management of the railroads of Cal- 
ifornia, and the conflict of authority here decided in favor of Congress has 
implications which will not improbahly cause great emharra.ssnu'nt in the 
near future. The Supreme Court says that Congress has the right to alter, 
amend, or repeal State charters. It does not make this claim in terms, 
but this is the actual outcome of its definition of State authority. The 
State, therefore, is thrust aside, and can no longer control the corporations 
it has endowed with life and functions. It cannot hope to exercise sover- 
eignty over agencies which are already claimed hy a higher jurisdiction. 
It is clearly impossible that the corporations concerned can pay allegiance 
equally to the State and to Congress. The mere suggestion of such a 
divided or duplicated sovereignty must be fatal to the tinancial standing 
of the enterprise so fixed between the upper and the nether millstone. 
Since either power may ruin the corporation, and since both powers claim 
the right to confiscate its property for disobedience of orders, the situa- 
tion is sufficiently difficult. The powers of the State are certainly 

circumscribed and diminished very seriously by this decision, and, in the 
words of Judge Field, ' It would seem plain that if legislation, taking in- 
stitutions of the State from its control, can be sustained by this court, 
the government will drift irom the limited and well-guarded system es- 
tablished by our fathers, into a centralized and consolidated govern- 
ment.' If this is States rights doctrine, it is a kind of States rights doc- 
trine which the best friends of republican government ought to subscribe 
to, for it is founded upon principles the neglect or abandonment of which 
must destroy the firmest supports of popular liberty, and prepare the way 
for the advent of a centralized despotism." 

The Thurman act, besides being open to the objections 
thus stated, operates with special hardship upon the people 
of the Pacific Coast, as the increased charges for transpor- 
tation which the Central Pacific will he required to make 
to meet the annual payment into the treasury of the 
United States of the sum of $1,2()0,000 many years before 
it is due, will fall prim-ipally upon them. This is a cir- 
cumstance whicli seems to have escaped the attention of 
the advocates of the measure. 



256 

Other Caseh. 

The opinions from which the quotations above are made 
have attracted more general attention than anv others writ- 
ten by Judge Field, yet they constitute a very small por- 
tion of his labors in the Supreme Court. His career on the 
bench covers many years, and in a large number of cases, 
of great importance, he has been called upon either to speak 
for the court or to express his dissent from its views. The 
questions involved in these cases have been of infinite 
variety, as one may suppose from the multitude of subjects 
upon which litigation can arise in the federal courts. It 
would occupy many pages to give an intelligent statement 
of them. They relate to many matters of a public charac- 
ter, as well as those of mere private concern; to treaties 
and international disputes; to foreign commerce and com- 
merce between the States; to the power of taxation of the 
States and of the general government, and the limits upon 
both, as atiected by contract and residence; to the pubHc 
lands of the United States and the cessions made by Congress 
to the different States, and to public institutions; to the law 
governing the right to the use of water by miners and 
settlers on the public lands; to the jurisdiction of the 
admiralty; to the debts of cities, counties, and States; to 
corporations of every kind, but especially to railroad cor- 
porations and grants to them; to subjects of prize and of 
revenue; to acts of the military and naval forces; and to 
a great number of other matters arising in a highly civil- 
ized community having commercial and diplomatic rela- 
tions with the rest of tlie world. 

The following are some of the cases : 

The Aloses Taylor, 4 Wallace, 411. 
The Siren, 7 Walhice, 152. 
The Iron-clad Atlanta, 3 Wallace, 425. 
The Daniel Ball, 10 Wallace, 557. 
Welton vs. State of Missouri, 1 Otto, 275. 
Sherlock vs. Allino:, 3 Otto, 99. 



257 

State Tax on Foroigu-held Bonds, 15 Wallace, 300. 

Low vs. Austin, 18^ Wallace, 29. 

Tai-ble's Case, 18 Wallace, 897. 

Trebilcock vs. Wilson, 12 Wallace, 087. 

Carlisle vs. United States, 16 Wallace, 147. 

Horn vs. Lockliart, 17 Wallace, 570. 

Boyd vs. Alabama, 4 Otto, 645. 

Xew Orleans vs. Clark, 5 Otto, 644. 

United States vs. Fox, 5 Otto, 670. 

Railroad Co. vs. Whitton, 18 Wallace, 270. 

Morgan vs. Louisiana, 3 Otto, 217. 

Clunnberlain vs. St. Paul & Sioux City R. R. Co., 2 Otto, 

299. 
Farnsworth vs. Minnesota & Pacific R. R. Co., 2 Otto, 49. 
Clark vs. Iowa City, 20 Wallace, 583. 
Weber vs. Tbe board of Harbor Commissioners, 18 

Wallace, 57. 
Telegraph Co. vs. Davenport, 7 Otto, 369. 
The Xitro-Glycerine Case, 15 Wallace, 524. 
The Confederate Note Case, 19 Wallace, 548. 
Boom vs. Patterson, 8 Otto, 403. 
Cromwell vs. County of Sac, 4 Otto, 351. 
Cromwell vs. County of Sac, 6 Otto, 51. 
Russell vs. Place, 4 Otto, 606. 
Bradley vs. Fisher, 18 Wallace, 835. 
Ex-parte RobVnson, 19 Wallace, 505. 
Atcliison vs. Peterson, 20 Wallace, 507. 
Basey vs. Gallagher, lb., 670. 
Jenn'ison vs. Kirk, 8 Otto, 458. 
Beard vs. Federy, 8 Wallace, 478. 
Hornsby vs. United States, 10 Wallace, 224. 
Gibson vs. Chouteau, 13 Wallace, 92. 
Henshaw vs. Bissell, 18 Wallace, 255. 
Shulenberg vs. Ilarriman, 21 Wallace, 44. 
Langdeau vs. ILmes, 21 Wallace, 521. 
TheVosemite Valley Case, 15 Wallace, 77. 
Shepley vs. Cowan, 1 Otto, 830. 
17 



258 

Beecher vs. AVetlierljy, 5 Otto, 517. 
Grisar vs. McDowell, 6 Wallace, 803. 
Stark vs. Starrs, 6 Wallace, 402. 
Galpiii vg. Page, 18 Wallace, 850. 
Pen n oyer vs. Neft', 5 Otto, 714. 
Windsor vs. McVeigh, 3 Otto, 274. 

The writing of opinions is Init a small part of the lahors 
of a judge of the Supreme Court. He is obliged to study 
and master every case which comes before the court and 
give his judgment upon it. About three hundred cases are 
thus considered by him every session, which usually lasts 
seven months. Some of the cases are decided without 
written opinions being given, some by a divided court, 
and those in which opinions are written are distributed 
among nine judges. The great labor of each judge con- 
sists in mastering the cases before the court so as to be able 
to give an intelligent judgment. 



259 



KOTE, 



Tlie precediuii," [)aii'<».s wore priiittMl a yau' ago, l)ut their 
piil)lication ^va^^ a'.'terwai'ds abandoned. Since then many 
tViends ot M udge Field in C'ahl'ornia- have expressed a de- 
sire that some account of other decisions of his should he 
added, and the whole published in a painphlet form. The 
other decisions particularly mentioned are those relating to 
inter-state com'merce, taxation by the general and State 
governments, the trust character of directors of corpora- 
tions, the use of running waters on the public lands, and 
various subjects of interest arising in the Circuit Court 
of the United States for California, such as the Pueblo of 
San Francisco and legislation of the State against the 
Chinese. In comphance with this desire the following 
pages liave been prepared. To them is added a notice of 
Ins action in the Electoral Commission of 1876, of which 
he was ;i member. 

JrxE, 1881. 



Inter-State Commerce. — Cases relatin(! to this 

SUBJECT. 

The Constitution of the United States vests in Congress 
the power " to regulate commerce with foreign nations 
and among the several States, and with the Indian tribes ;" 
and no provision of that instrument is of more importance, 
or has been the subject of greater discussion. The mean- 
ing of the term commerce, and how far the grant of power 
to regulate it is exclusive of State interference, how far, if 
at all, it is concurrent with the authority of the State, and 
what is the effect of non-action by the general government 
with respect to any particular subject of commerce, have 
all been the occasion of earnest discussion and of wide 
18 



260 

diftei-ences of opinion. The earlier judges of the Supreme 
Court disagreed in tlieir views. It is only of late years 
that there has been any concurrence on the subject among 
the members of that Court. Important opinions leading 
to this uniformity have been rendered by nearly all of 
the judges. It is the object of this compilation to refer 
only to those delivered by Judge Field. 

In Welton vs. The State of Missouri, (1 Otto, 275,) the 
Court, at its October term of 1875, was called upon to con- 
sider the validity of a statute of Missouri discriminating in 
favor of goods, wares, and merchandise which were the 
growth, product, or manufacture of the State, and against 
those which w^ere the growth, product, or manufacture of 
other States or countries, in the conditions upon which 
their sale could be made by traveling dealers. One Wel- 
ton was a dealer in sewing machines which were manu- 
fectured without the State of Missouri, and went from 
place to place in the State selling them without a license 
for that purpose. For this olfence he was indicted and 
convicted in one of the Circuit Courts of the State, and 
was sentenced to pay a fine of fifty dollars, and to be com- 
mitted until the same was paid. On appeal to the Su- 
preme Court of the State the judgment was affirmed. 

The statute under which the conviction was had declared 
that whoever dealt in the sale of goods, w^ares, or mer- 
chandise, except books, charts, maps, and stationery, which 
were not the growth, produce, or manufacture of the State, 
by going from place to place to sell the same, should be 
deemed a pedlar; and tlien enacted that no person should 
deal as a pedlar without a license, and prescribed the rates 
of charge for the licenses, these varying according to the 
manner in which the business was conducted, whether by 
the party carrying the goods himself on foot, or by the 
use of beasts of burden, or by carts or other land carriage, 
or by boats or other river vessels. Penalties were im- 
posed for dealing without the license prescribed. Iso li- 
cense was required for selling in a similar way — by going 



•261 

IVoin jihu'O to place in the State n'oods whieli were the 
gi'owth, prodiiet. or inanulaelure of the State. 

The lieeiise ehari^e exacted was souu^ht to ])e runintaincd 
as a tax upon a eaUi'iu'. Tt wa> helil to l)e such a tax l)_v 
tlie Siii>renie Court of the State; a calHiiu-, said tlie Court, 
whicli was limited to the sah' of merchandise not the 
UTowth or product of the State. To this view the Supremo 
Court of tlie Unitt'd States, speakinu' throuu'h . I udi^e Field, 
said : 

" The general power of tlie State to impose taxes in the way of licenses 
upon all pursuits and occupations within its limits is admitted, hut like 
all other powers must be exercised in subordination to the requirements 
of the federal Constitution. Where the business or occupation consists 
in the sale of goods, the license tax required for its pursuit is in eflect a 
tax upon the goods themselves. If such a tax be within the power of the 
State to levy, it matters not whether it be raised directly from the goods, 
or indirectly from them through the license to the dealer. But if such 
tax conflict with any power vested in Congress by the Constitution of 
the Ignited States, it will not be any the less invalid because enforced 
through the form of a personal license. 

"In the case of Brown vs. Mar^-land * tlie question arose whether an 
act of the Legislature of Maryland requiring importers of foreign goods 
to pay tiie State a license tax before selling them in the form and condi- 
tion in which they were imported, was valid and constitutional. It was 
contended that the tax was not imposed on the importation of foreign 
goods, but upon the trade and occupation of selling such goods by whole- 
sale after they were imported. It was a tax. said the counsel, upon the 
profession or trade of the party when that trade was carried on within 
the State, and was laid upon the same jiriiiciple as the usual taxes upon 
retailers, or inn-keepers, or hawkers and pedhirs, or upon any other trade 
exercised within the State. But the Court in its decision replied that it 
was impossilde to conceal the taf't tliat this mode of taxation was only 
varying the form without varying the substance, that a tax on the occu- 
pation of an importer was a tax on importation, and must add to the 
price of the article and be paid by the consumer or by the importer him- 
self in like manner as a direct duty on the article itself. Treating the 
exaction of the license tax from the importer as a tax on the goods im- 
ported, the Court held that the act of .Maryland was in conflict with the 
Constitution ; with the clause proliibiting a State, without the consent 
of Congress, from laying any impost or duty on imports or exports, and 
with the clause investing Congress with the jiower to regulate commerce 
with foreign nations. 

*!;? Wheaton, 4-25, 444. 



26-2 

"►So, in like manner, the license tax exacted by the State of Missouri 
from dealers in goods which are not the product or manufacture of the 
State, before they can be sokl from place to place within the State, must 
be regarded as a tax upon such goods themselves. And the question 
presented is, whether legislation thus discriminatingagaiust the products 
of other States in the conditions of their sale by a certain class of dealers 
is valid under the Constitution of the United States. It was contended 
in the State Courts, and it is urged here, that this legislation violates that 
clause of the Constitution which declares that Congress shall have the 
power to regulate commerce with foreign nations and among the several 
States. The power to regulate conferred by that clause upon Congress, 
is one without limitation ; and to regulate commerce is to prescribe rules 
by which it shall be governed, that is, the conditions upon which it Shall 
be conducted ; to determine how far it shall be free and untrammeled ; 
how far it sliall be ))urdened by duties and imposts, and how far it shall 
be prohibited. 

" Commerce is a term of the largest import ; it comprehends intercourse 
for the i:)urposes of trade in any and all its forms, including the trans- 
portation, purchase, sale, knd exchange of commodities between the citi- 
zens of our country and the citizens or subjects of other countries, and 
between the citizens of different States. The power to regulate it em- 
braces all the instruments by which such commerce may be conducted. 
So liir as some of these instruments are concerned, and some subjects 
which are local in their operation, it has been held that the States may 
provide regulations until Congress acts with reference to them. But 
where the subject to which the power applies is national in its character, 
or of such a nature as to admit of uniformity of regulation, the j)Ower is 
exclusive of all State authority. 

" It will not be denied that that portion of commerce with foreign 
countries and between the States, which consists in tlie transportation 
and exchange of commodities, is of national importaiice, and admits and 
requires uniformity of regulation. The very object of investing this 
power in the general goverunient was to insure this ixniformity against 
discriminating State legislation. The depressed condition of commerce 
and the obstacles to its growth previous to the adoption of the Constitu- 
tion, from the want of some single controlling authority, has been fre- 
quently referred to by this Court in commenting upon the power in 
question. 'It was regulated,' says Chief Justice Marshall, in delivering 
the opinion in Brown vs. Maryland, 'by foreign nations with a single 
view to their own interests, and our disunited efforts to counteract their 
restrictions were rendered impotent by want of combination. Congress, 
indeed, possessed the power of making treaties, but the inability of the 
Federal Government to enforce them became so apparent as to render 
that power in a great degree useless. Those who felt the injury arising 
from this state of things, and those who were capable of estimating the 
influence of commerce on the prosperity of nations, perceived the neces- 



2()8 

sity of giving (lu^ control over this impoft;uit subject to ;i single govern- 
ment. It niiiy be doubtful whether any of the evils proceeding from the 
feebleness of the I-^ederal Government contributed more to that great rev- 
olution which inlroiluceil the present system, than the deep and general 
conviction that couunerce ought to l)e regulated by Congress.' 

"The power which insures uniformity of connnercial regulation must 
cover the property which is transported as an article of commerce from 
hostile or interfering legislation until it has mingled with and become a 
part ol" the general ])roperty of the (;ountry and subjected like it to sim- 
ilar protection, and to no greater burdens. If at any time l)eforc it has 
thus become incorporated into the mass of i)ropcrty of the State or na- 
tion, if can be subjected to any restrictions by State legislation, the ob- 
ject of investing the control in Congress may be entirely defeated. If 
Missouri can require a license ta.K for the sale by traveling dealers of 
goods which are the growth, product, or manuflicture of other States or 
countries, it may require such license tax as a condition of their sale from 
ordinary merchants, and the amount of the tax will be a matter resting 
exclusively in its discretion. 

" The power of the State to exact a license tax of any amount being ad- 
mitted, no authority would remain in the United States or in this Court 
to control its action, however unreasonable or oppressive. Imposts oper- 
ating as an absolute exclusion of the goods would be possible, and all the 
evils of discriminating State legislation, favorable to the interests of one 
State and injurious to the interests of other States and countries, which 
existed previous to the adoption of the Constitution, might follow, and 
the experience of the last llfteen years shows would follow from the ac- 
tion of some of the States. 

" There is a difficulty, it is true, in all cases of this character, in draw- 
ing the line precisely where the commercial power of Congress ends and 
the power of the State begins. A similar difficulty was felt by this Court 
iu Brown vs. Maryland, in drawing the line of distinction between the 
restriction upon the power of the States to lay a duty on imports, and 
their acknowledged power to tax persons and property, but the Court 
observed that the two, though quite distinguishable when they do 
not approach each other, may yet, like the intervening colors between 
white and black, approach so nearly as to perplex the understanding, as 
colors perplex the vision in marking the distinction between them, but 
that, as the distinction exists, it must be marked as the cases arise. And 
the Court, after observing that it might be premature to state any rule 
as being universal in its application, held that when the importer had so 
acted upon the thing imported that it had become incorporated and 
mixed up with the mass of property in the country, it had lost its dis- 
tinctive character as an import, and become subject to the taxing power 
of the State, but that while remaining the property of the importer, in 
his warehouse in the original form and package in which it was im- 
ported, the tax upon it was plainly a duty ou imports, prohibited by the 
Constitution. 



264 

" Following the guarded language of the Court in that case we observe 
here, as was observed there, that it would be premature to state any rule 
which would be universal in its application to determine when the com- 
mercial power of the Federal Government over a commodity has ceased 
and the power of the State has commenced. It is sufficient to hold now 
that the commercial power continues until the commodit3' has ceased to 
be the subject of discriminating legislation by reason of its foreign char- 
acter. That power protects it, even after it has entered the State, from 
any burden imposed by reason of its foreign origin. The act of Missouri 
encroaches upon this power in this respect, and is, therefore, in our judg- 
ment, unconstitutional and void. 

" The fact tliat Congress has not seen fit to prescribe any specific rules to 
govern inter-state commerce does not affect the question. Its inaction 
on this subject, when considered with reference to its legislation with re- 
spect to foreign commerce, is equivalent to a declaration that inter-state 
commerce shall be free and untrammeled. As the main object of that 
commerce is the sale and exchange of commodities, the policy thus es- 
tablished would be defeated by discriminating legislation like that of 
Missouri." 

The doctrine of tlii.-^ case has been approved in Tiernan 
vs. Rinker (12 Otto, 123); and in Webber vs. State of 
Virg-inia (13 Id.), in both of wliicli cases Jnd<i'e Field de- 
livered the opinion of the Court. In the iirst of these 
the C'OUi't said, that the doctrine had never been questioned 
l)ut had been uniformly recognized and followed, and ex- 
presses now its '-settled judgment." In the second one, 
which involved the consideration of the validity of a li- 
cense tax imposed under a statute of Virginia, discrimitiat- 
ing in favor of resident manutacturers and against mann- 
facturers of other States, the Court, in holding the law in- 
valid said, that " commerce among the States in an}^ com- 
modity can only be free when the commodity is exempted 
from all discriminating regnlations and burdens imposed 
by local atuhority by reason of its foreign grow^th or manu- 
facture," 

In the subsequent case of Sherlock vs. Ailing, (3 Otto, 
99,) the Court was called upon to consider the validity of 
State legislation not directed against foreign or inter-state 
commerce or any of its regulations, but indirectly and 
remotely affecting persons engaged in it. In Decem- 



265 

ber, 1858, two steamboats coHided on tbc Obio liivov at 
a point opposite tbe main land of tbc State of Intbana. 
By tbe colbsion tlie linll of one of tbeni was broken in, 
and a fire started, wbi<'b burned tbe boat to tbe water's edge, 
destroying it and causing tbe deatb of one of its passen- 
ger;^ a citizen of Indiana. Tbe administrator of tbe de- 
ceased brouglit an action for bis deatb in one of tlie Courts 
of Common Pleas of Indiana, under a statute of tbat State, 
wbicb provides '• tbat wben tbe deatb of one is caused by 
tbe wrongful act or omission of anotbei', tbe personal rep- 
sentatives of tbe f )rmer may maintain an action tberefor 
against tbe latter, if tbe former migbt bave maintained an 
action, bad be lived, against tbe latter for an injury for 
tbe same act or omission." 

Tbe complaint in tbe action alleged tbat tbe colbsion oc- 
curred within the territorial jurisdiction of Indiana, above 
the line of low-water mark of the river, and charged it 
generally to the careless and negligent navigation of the 
steamboat of tbe defendants by their servants and officers 
of the vessel. To defeat this action tbe defendants relied 
upon substantially the following grounds of defence: 1st, 
that the injuries complained of occurred on tbe river Ohio 
beyond low-water mark on the, Indiana side, and within 
the limits of the State of Kentucky; and that by a law of 
that State an action for tbe death of a party from the care- 
lessness of another could only be brought within one year 
from such deatb, wbicb period bad elapsed when the pres- 
ent action was brought; and, 2d, that at the time of the 
alleged injuries the coUiding boats were engaged in carry- 
ing on inter-state commerce under the laws of the Ignited 
States, and the defendants as their owners were not liable 
for injuries occurring in their navigation through the care- 
lessness of their officers, except as prescribed by those 
laws; and that these did not cover the hability asserted by 
the plaintitf under the statute of Indiana. 

The plaintiff recovered judgment in the Court of Com- 
mon Pleas, which the Supreme Court of the State affirmed, 



266 

and tlie case was taken to tlie Supreme Court of tlie 
United States. There the first ground of defence was not 
considei'ed as open to consideration under the admission 
of the parties, l)ut upon the second ground, the Court, 
speaking througli Judge Field, said as follows: 

" Under this head it is contended that the statute of Indiana creates a 
new liability, and could not, therefore, be applied to cases where the in- 
juries complained of were caused by marine torts, without interfering 
with the exclusive regulation of commerce vested in Congress. The 
position of the defendants, as we understand it, is that as by both the 
common and maritime law the right of action for personal torts dies with 
the person injured, the statute which allows actions for such torts, when 
resulting in the death of the person injured, to be brought by the per- 
sonal representatives of the deceased, enlarges the liability of parties for 
such torts, and that such enlarged liability, if apiilied to cases of marine 
torts, would constitute a new burden upon commerce. 

" In supposed support of this position numerous decisions of this Court 
are cited by counsel, to the effect that the States cannot by legislation 
place burdens irpon commerce with foreign nations or among the several 
States. The decisions go to that extent, and their soundness is not ques- 
tioned. But upon an examination of the cases in which they were ren- 
dered- it will be found that the legislation adjudged invalid imposed a 
tax upon some instrument or subject of commerce, or exacted a license 
fee from parties engaged in commercial pursuits, or created an impedi- 
ment to the free navigation of some public waters, or prescribed condi- 
tions in accordance with which commerce in particular articles or between 
particular jjlaces was reciuired to be conducted. In all the cases the 
legislation condemned operated directly upon commerce, either by way 
of tax upon its business, license upon its pursuit in particular chan- 
nels, or conditions for carrying it on. Thus, in the Passenger Cases,* 
the laws of New York and Massachusetts exacted a tax from the cap- 
tains of vessels bringing passengers trom foreign ports for every passen- 
ger landed. In the Wheeling-Bridge Case f the statute of Virginia 
authorized the erection of a bridge, which was held to obstruct the free 
navigation of the river Ohio. In the case of Siunot vs. Davenport| the 
statute of Alabama required the owner of a steamer navigating the 
waters of the State to lile, before the boat left the port of Mobile, in the 
ofiace of the probate judge of Mobile County, a statement in writing, set- 
ting forth the name of the vessel and of the owner or owners, and his or 
their place of residence and interest iu the vessel, and prescribed penalties 
for neglecting the requirement. It thus imposed conditions for carrying 
on the coasting trade in the waters of the State in addition to those pre- 
scribed by Congress. And in all the other cases where legislation of a State 

* 7 How., 445. 1 13 Id., 518. + 22 Id.. 227. 



2^7 

has boeii held to be null I'or iiiterrerin^ with the coiiiiucrcial power of 
Congress, as in Browu vs. Maryland,* the Tonnage Tax Cases,t and Welton 
vs. Missouri, J the legislation ereated, in the way of tax, license, or condi- 
tion, a direct burden upon commerce, or in sonic way directly interfered 
with its freedom. In the present case no such operation can be ascribed 
to the statute of Indiana. That statute imposes no tax, prescribes no 
duty, and in no respect interfei-es with any regulations for the navigation 
and use of vessels. It only declares a general principle respecting the li- 
ability of all persons witliin the jurisdiction of the State for torts result- 
ing in the death of parties injured. And in the application of the prin- 
ciple it makes no difference where the injury complained of occurred in 
the State, whether on land or on water. General legislation of this kind 
prescribing the liabilities or duties of citizens of a State, without distinc- 
tion as to pursuit or calling, is not open to any valid objection because 
it may atfect persons engaged in foreign or inter-state commerce. Ob- 
jection might with equal propriety be urged agaijist legislation pre- 
scribing the form in which contracts shall be authenticated, or property 
descend or be distributed on the death of its owner, because applicable 
to the contracts or estates of persons engaged in such commerce. In con- 
ferring upon Congress the regulation of commerce, it was never intended 
to cut the States off from legislating on all subjects relating to the health, 
life, and safety of their citizens, though the legislation might indirectly 
affect the commerce of the country. Legislation in a great variety of 
ways may affect commerce and persons engaged in it without constituting 
a regulation of it, within the meaning of the Constitution. 

"It is true that the commercial power conferred by the Constitution is 
one without limitation. It authorizes legislation with respect to all the 
subjects of foreign and inter-state commerce, the persons engaged in it, 
and the instruments by which it is carried on. And legislation has 
largely dealt, so far as commerce by water is concerned, with the instru- 
ments of that commerce. It has embraced the whole subject of naviga- 
tion, prescribed what shall constitute American vessels, and by whom 
they shall be navigated ; how they .shall be registered or enrolled and li- 
censed : to what tonnage, hospital, and other dues they shall be sub- 
jected ; what rules they shall obey in pas.sing each other ; and what pro- 
vision their owners shall make for the health, safety, and comfort of their 
crews. Since steam has been applied to the propulsion of vessels, legis- 
lation has embraced an infinite variety of further details to guard against 
accident and consequent loss of life. 

" The power to prescribe these and similar regulations necessarily in- 
volves the right to declare the liability which shall follow their infrac- 
tion. Whatever, therefore. Congress determines, either as to a regulation 
or the liability for its infringement, is exclusive of State authority. But 
with reference to a great variety of matters touching the rights and lia- 

* 12 Wheat., 42.1. f 12 AVallace. 204. X 1st Otto, 275. 



268 

bilities of persons engaged in commerce, either as owners or navigators 
of vessels, the laws of Congress are silent, and the laws of the State gov- 
ern. The rules for the acquisition of property by persons engaged in 
navigation, and for its transfer and descent, are, with some exceptions, 
those prescribed by the State to which the vessels belong. And it may 
be said generally that the legislation of a State, not directed against com- 
mei'ce or any of its regulations, but relating to the rights, duties, and li- 
abilities of citizens, and only indirectly and remotely affecting the opera- 
tions of commerce, is of obligatory force upon citizens within its territo- 
rial jurisdiction, whether on land or water, or engaged in commerce, for- 
eign or inter-state, or in any other pursuit. In our judgment the statute 
of Indiana falls under this class. Until Congress, therefore, makes some 
regulation touching the liability of parties for marine torts resulting in 
the death of the persons injured, we are of opinion that the statute of 
Indiana applies, giving a right of action in such cases to the personal rep- 
resentatives of the deceased, and that, as thus applied, it constitiites no 
encroachment upon the commercial power of Congress."* 

But the most elaborate consideration of the conunercial 
clause of the Constitution, and the extent to wliich the 
power of Congress is exclusive of State authority, found 
among the recent decisions of the Court, is contained 
in an opinion rendered at the last term, in the case of 
County of Mobile vs. . Kimball.— (12 (3tto., 691.) In 
February, 1867, the Legislature of Alabama passed an 
act to " provide for the improvement of the river, bay, 
and harbor of Mobile." It created a board of commis- 
sioners for the improvement of the river, harbor, and 
bay of Mobile, and required the president of the Commis- 
sioners of Revenue of Mobile County to issue bonds to 
the amount of one million dollars, and deliver them, 
when called for, to the board, to meet the expenses of the 
work directed. The board was authorized to apply the 
bonds or their proceeds to the cleaning out, deepening, 
and widening of the river, harbor, and bay, or any part 
thereof, or to the construction of an artificial harbor in 
addition to such improvements. 

In June, 1872, the board of commissioners entered into 
a contract with Messrs. Kimball & Slaughter to dredge 

* United States vs. Bevaus, 3 Wheat., 337. 



209 

and cut a chaniiol through a dosi^-iiakMl l»ai' in the l)ay,of a 
specified width. (U'pth, and distance, at a named price per 
eul)ic yard of material excavated and removed, and 1o 
receive in payment the honds of tlie county issued mider 
the act mentioned. Fn pursuance of this conti'act, the 
work aii'ret'd upon was at once uncha'takeii l)y Kimball 
& Slauii-hter, and was c-ompieted in March, 1878, and ac- 
ce[)ted l>v the hoard thi'ouuh its authorized en<i'ineer. The 
amount due to tluan was [)aid, with the ext-eption of six 
l)on(ls,and to ohtain the delivery of those six, or payment 
of their vidue, suit was hrongltt against the county. Among 
other defences to the suit, it \Yas contended that the act of 
the State, mider wlfudi the work was done, conflicted with 
the commercial power vested in Congress, and was, there- 
fore, void. To this objection the Court, speaking through 
Judge Field, said as t()llows: 

"Tlie objeotiou ttiat the law of the State, in authorizing the improve- 
ment of the harbor of MobiU% trenches upon the commercial power of 
Congress, assumes an exclusion of State authority from all subjects in 
relation to which that power may be exercised not warranted by the 
adjudications of this Court, notwithstanding the strong expressions 
used by some of its judges. That power is indeed without limitation. 
It authorizes Congress to prescribe the conditions upon which commerce 
in all its forms shall be conducted between our citizens and the citizens 
or sul)jects of other countries, and between the citizens of the several 
States, and to adopt measures to promote its growth and insure its safety. 
And as commerce embraces navigation, the improvement of harbors and 
bays along our coast, and of navigable rivers within the States connecting 
with them, falls within the power. The subjects, indeed, upon which 
Congress can act under this power are of infinite variety, requiring for 
their successful management different plans or modes of treatment. 
Some of them are national in their character, and admit and require uni- 
formity of regulation, affecting alike all the States ; others are local, or 
are mere aids to commerce, and can only be properly regulated by pro- 
visions adapted to their special circumstances and localities. Of the 
former class may be mentioned all that portion of commerce with for- 
eign countries or between the States which consists in the transportation, 
purchase, sale, and exchange of commodities. Here there can, of neces- 
sity, be only one system or plan of regulations, and that Congress alone 
can prescribe. Its non-action in such cases, with respect to any particu- 
lar commodity or mode of transportation, is a declaration of its purpose 
that the commerce in that commodity or "by that means of transportation 



270 

shall be free. There would otherwise be no security against conflicting 
regulations of clitferent States, each discriminating in favor of its own 
products and citizens and against the products and citizens of other 
States. And it is a matter of public history that the object of vesting 
in Congress the power to regulate commerce with foreign nations and 
among the States was to insure uniformity of regulation against conflict- 
ing and discriminating State legislation. 

"Of the class of subjects local in their nature, or intended as mere aids 
to commerce, which are best provided for by special regulations, may be 
mentioned harbor pilotage, buoy^, and beacons to guide mariners to the 
proper channel in which to direct their vessels. 

" The rules to govern harbor pilotage must depend in a great degree upon 
the peculiarities of the ports where they are to be enforced. It has been 
found by experience that skill and efficiency on the part of local pilots 
is best secured by leaving this subject principally to the control of the 
States. Their authority to act upon the matter and regulate the whole 
subject, in the absence of legislation by Congress, has been recognized by 
this Court in repeated instances. In Cooley vs. The Board of Wardens of 
the Port of Philadelphia, the Court refers to the act of Congress of 1789, 
declaring that pilots should continue to be regulated by such laws as the 
States might respectively thereafter enact for that purpose; and observes 
that 'it manifests the understanding of Congress, at the outset of the 
government, that the nature of this subject is not such as to require its 
exclusive legislation. The practice of the States and of the national gov- 
ernment has been in contbrmity with this declaration, from the origin of 
the natioual government to this time ; and the nature of the subjeet, 
Avhen examined, is such as to leave no doubt of the superior fitness and 
propriety, not to say the absolute necessity, of difterent systems of reg- 
ulation, drawn from local knowledge and expeiience, and conformed to 
local wants.'— (12 How., p. 320.) 

" Buoys and beacons are important aids, and sometimes are essential to 
the safe navigation of vessels, in indicating the channel to be followed at 
the entrance of harbors and in rivers; and their establishment by Con- 
gress is undoubtedly within its commercial power. But it would be ex- 
tending that power, to the exclusion of State authority, to an unreason- 
able degree, to hold that, whilst it remained unexercised upon this sub- 
ject, it would be unlawful for the State to provide the buoys and beacons 
required for the safe navigation of its harbors and rivers, and in case of 
their destruction, by storms or otherwise, it could not temporarily sup- 
ply their places until Congress could act in the matter and provide for 
their re-establishment. That power which every State possesses, some- 
times termed its police power, by which it legislates for the protection of 
the lives, health, and property of its people, would justify measures of 
this kind. 

" The unilbrmity of commercial regulations, which the grant to Con- 
gress was designed to secure against conflicting State provisions, was nee- 



271 

essiuily iiiteiuled only Ibi' (.'hscs when; sucli uiiil'orinity is piacticiiblc. 
Whore, from its nature or the sphere of its operation, tlie subject is 
local and limited, special regulations adapted to the immediate locality 
could only have been contemplated. State action upon such subjects 
can constitute no interference with the commercial power of Con- 
gress; for wlieu that acts, the State authority is superseded. Inaction 
of Congress upon these subjects of a local nature or operation, unlike 
its inaction upon matters affecting all the States and requiring uni- 
formity of regulation, is not to be taken as a declaration that nothing 
shall be done with respect to them, but is rather to be deemed a declara- 
tion that, for the time being, and until it sees fit to act, they may be reg- 
ulated by State authority. 

'' The improvement of harbors, hays, and navigable rivers within the 
States falls within this last category of cases. The control of Congress 
over them is to insure freedom in their navigation, so far as that is essen- 
tial to the exercise of its commercial power. Such freedom is not en- 
croached upon by the removal of obstructions to their navigability, or hy 
other legitimate improvement. The States have as full control over their 
purely internal commerce as Congress has over commerce among the sev- 
eral States and with foreign nations; and to promote the growth of that 
internal commerce and insure its safety, they have an undoubted right to 
remove obstructions from their harbors and rivers, deepen their channels, 
and improve them generally, if they do not impair their free navigation 
as permitted under the laws of the United States, or defeat any system 
for the improvement of their navigation provided by the general govern- 
ment. Legislation of the States for the purposes and within the limits 
mentioned do not infringe npon the commercial power of Congress; and 
so we hold that the act of the State of Alabama, of February KJ, 1867, to 
provide for the 'improvement of the river, baj^, and harbor of .Mobile' 
is not invalid. 

"There have been, it is true, expressions by individual judges of this 
Court going to the length that the mere grant of the commercial powder, 
anterior to any action of Congress under it, is exclusive of all State au- 
thority ; but there has been no adj udication of the Court to that effect. In 
the opinion of the Court in Gibbons vs. Ogden, the first and leading case 
upon the construction of the Constitution, and which opinion is recog- 
nized as one of the ablest of the great Chief Justice then presiding, there 
are several expi-essions which would indicate, and his general reasoning 
would tend to the same conclusion, that in his judgment the grant of the 
commercial power was of itself sufficient to exclude all action of the 
States ; and it is upon them that the advocates of the exclusive theory 
chiefly rely ; and yet be takes care to observe that the question was not 
involved in the decision required by that case. ' In discussing the ques- 
tion whether this power is still in the States,' he observes that ' in the 
case under consideration we may dismiss trom it the inquiry, whether it 
is surrendered bv the mere grant to Congre.ss, or is retained until Con- 



gress shall exercise the power. We iii;i_\ dismiss that iiujuiry because, 
it has been exercised, and the regulations which Congress deemed it pro- 
per to make are now in full operation. The sole question is, can a State 
regulate commerce Avith foreign nations and among the several States 
while Congress is regulating it?' And the decision was necessarily re- 
stricted by the limitations of the question presented. It determined 
that the grant of power by the Constitution, accompanied by legislation 
under it, operated as an inhibition upon the States from interfering with 
the subject of that legislation. The acts of New York giving to Living- 
ston and Fulton an exclusive right to navigate all the waters within its 
jurisdiction, with vessels propelled by steam, for a certain period, being 
in collision with the laws of Congress regulating the coasting trade, were, 
therefore, adjudged to be unconstitutional. This judgment was rendered 
in 1824.— (9 Wheat., 1.) Some years later (1829) the case of Wilson vs. 
Blackbird Creek Marsh Company came befoi-e the Court. There, a law 
of Delaware authorizing the construction of a bridge over one of its small 
navigable streams, which obstructed the navigation of the stream, was 
held to be repugnant to the commercial power of Congress. The Court, 
Chief Justice Marshall delivering its opinion, placed its decision entirely 
upon the absence of any congressional legislation on the subject. Its 
language was : ' If Congress had passed any act which bore upon the case 
— any act in execution of the power to regulate commerce, the object of 
which was to control State legislation over these small navigable creeks 
into which the tide flows, and which abound throughout the lower 
country of the Middle and Southern States, we sliould not feel much 
difficulty in saying that a State law coming in conflict with such act 
would be void. But Congress has passed no such act. The repugnancy 
of the law of Delaware to the Constitution is placed entirely on its repug- 
nancy to the power to regulate commerce with foreign nations and among 
the several States — a power which has not been so exercised as to affect 
the question.'— (2 Peters, 282.) 

'■ In the License Cases, which were before the Court in 1847, there was 
great diversity of views in the opinions of the different judges upon the 
operation of the grant of the commercial power of Congress in the absence 
of congressional legislation. Extreme doctrines upon both sides of the 
question were asserted by some of the judges, but the decision reached, 
so far as it can be viewed as determining any question of construction, 
was confirmatory of the doctrine that legislation of Congress is essential 
to prohibit the action of the States upon the subjects there considered. 

" But in 1851, in the case of Cooley vs. The Wardens of the Port of Phil- 
adelphia, to which we have already referred, the attention of the Court 
appears to have been for the first time drawn to the varying and differ- 
ent regulations reijuired by the different subjects upon wiiich Congress 
may legislate under the commercial power .; and from this consideration 
the conclusion was reached that, as some of these subjects are national 
in their nature, admitting of one uniform plan or system of regulation, 



1>78 

whilst others, bt-iufj; U)Va\ in their imturc or opciiitioii. can he Ijest re<^ii- 
lated by the States, the exclusiveness of the power in any case is to be 
determined more by the nature of the subject uixm whirli it is to operate 
than by the terms of the grant, wliieli. thon.uli ueneral, arc not accompa- 
nied l>y any express prohibition to the exercise of the jjower by the States. 
The decision was confined to tlie validity of regulations by the States of 
harbor pilotage ; but the reasoning of the Court suggested as satisfactory a 
solution as perhaps could be obtained of the question which had so long 
divided the judges. The views expressed in the opinion delivered are 
followed in Oilman vs. Philadelphia (3 Wall., 727), and are mentioned with 
approval in Crandall vs. State of Nevada (6 Wall., 42). In the first of 
these cases the Court, after stating that some subjects of commerce call 
for uniform rules and national legislation, and that others can ' be best 
regulated by rules and provisions suggested by the varying circumstances 
of ditferent localities, and limited in their operation to such localities re- 
spectively,' says, ' whether the power in any given case is vested exclu- 
sively in the general government, depends upon the nature of the sub- 
ject regulated.' The doctrine was subsequently recognized in the case 
of Welton vs. ]Missouri (91 U. S., 282), in Henderson vs. Mayor of New 
York (95 U. S., 259), and in numerous other cases ; and it may be con- 
sidered as expressing the final judgment of the Court. 

Perhaps some of the divergence of views upon this question among 
former judges may have arisen from not always bearing in mind the dis- 
tinction between commerce, as strictly defined, and its local aids or in- 
struments or measures taken for its improvement. Commerce with for- 
eign countries and among the States, strictly considered, consists in inter- 
course and traffic, including in these terms navigation and the trans- 
portation and transit of persons and property as well as the purchase, 
sale, and exchange of commodities. For the regulation of commerce as 
thus defined there can be only one system of rules applicable alike to the 
whole country ; and the authority which can act for the whole country 
can alone adopt such a system. Action upon it by separate States is not, 
therefore,' permissible. Language affirming the exchisiveness of the 
grant of power over commerce as thus defined may not be inaccurate, 
when i1^ would be so if applied to legislation upon subjects which are 
merely auxiliary to commerce." 



The Power of Taxation by the Oexeral axi> State 
Governments, and some of its LiMiT.vnoNS. 

It has been settled hy immeroiis decisions of the Su- 
preme Court of the United States that the ohliii-ations 
and instrumentahties of the o:eneral o-overnment, that is. 



l74 

tlie moans by which its functions are executed, arc not 
subject to taxation by the States. 

Ill McCallough vs. Alaryhuid, (4 Wheaton, 432,) de- 
cided in 1819, — which is the leading case on this sub- 
ject, — a statute of Maiyland imposing a tax upon a branch 
of the Bank of the United States estabhshed at Balti- 
more, in that State, was considered. The Ooui't held that 
the bank, being one of the instrumentalities of the gov- 
ernment in the execution of its powers, was not subject 
to taxation by the State; that the power to create the 
bank implied the power to preserve it, and that the right 
of the State to tax, if conceded, might be so exercised as 
to destroy the institution, and thus wholly defeat the op- 
erations of the Federal Government. " If the States," 
said Chief Justice Marshall, " may tax one instrument 
employed by the government in the execution of its pow- 
ers, they may tax any and every other instrument. They 
may tax the mail; they may tax the mint; they may tax 
patent rights; they may tax the papers of the custom- 
house, tliey may tax judicial process; they may tax all 
the means emj!)loyed by the government to an excess 
wliich would defeat all the ends of government. This 
was not intended by the American people. They did 
not design to make their government dependent on the 
States." 

In Weston vs. Charleston, (2d Peters, 449,) decided in 
1829, an ordinance of the city of Charleston imposing a 
tax upon all personal estate owned in the said city, includ- 
ing, among other things, six and seven per cent, stock of 
the United States, was considered. The Court held that 
the tax in question was a tax upon the contract subsisting 
between the government and individuals, and, therefore, 
operated directly upon the power to borrow money on the 
credit of the United States; that if the right to impose it 
existed with the States, it was a right wdiich in its nature 
acknowledged no limits, and might be exercised to the 
serious endiarrassment of the Federal (rovernment; that 



such ;i rii;-lit was, tlKM'cl'oi'e, iiicoiisistcMit with the sii[(reiuacy 
of that ii'ovenmuMit in the powers i^-i'aiitcd to it. 

Til DobhiiKs vs. The Coininissiotun-s of Krie County, 
(K; Peters, 435,) deeided in 1842, a law of Pennsylvania, 
authorizing an assessment upon all "■ oliiees and positions 
of profit," was lield invalid so far as it applied to offices of 
the United States, the Court re-affirming the doctrine that 
the States cannot impose a tax upon the means and instru- 
mentalities of the general government in the execution of 
its powers. The compensation, said the Court, of an officer 
of the United States is fixed by a law of Congress passed 
in the exercise of its discretion; such law confers upon liim 
the right to the compensation in its entireness,and any act 
of a State imposing a tax upon the olRce in diminishing its 
recompense conflicts with that law. 

The principle involved in these decisions, that the 
means and instrumentalities by which the general gov- 
ernment executes its powders cannot be embarrassed and 
burdened by the action of the States, is equally applicable 
to prevent the means and instrumentalities of the govern- 
ments of the States, essential to the execution of their re- 
served powers, from being in like manner embarrassed and 
burdened l)y the general government, and was so applied 
in the case of Collector vs. Day.— (11 Wall., 113.) Un- 
der an act of Congress a tax had been levied upon the 
salarj' of a judge of probate in Massachusetts. The judge 
paid the tax under protest, and brought suit to recover 
it back. The Supreme Court held that it was not compe- 
tent for Congress to impose a tax upon the salary of a ju- 
dicial officer of a State. Referring to the case of Dobbins 
vs. Tlie Commissioners of Erie County, the Court, speak- 
ing through Judge ISTelson, said: 

" If the means and instrumentalities employed by that government [the 
general government] to carry into operation the powers granted to it are, 
necessarily, and, for the sake of self-preservation, exempt from taxation by 
the States, why are not those of the States depending upon their reserved 
powers, for like reasons, equally exempt from federal taxation ? Their 
unimpaired existence in the one case is as essential as in the other. It is 

19 



27(J 

admitted that there is no express provision in the Constitntion that pro- 
hihits the general government from taxing the means and instrumentali- 
ties of the Slates, nor is there any prohibiting the States from taxing the 
means and instrumentalities of that government. In both cases the ex- 
emption rests i^pon necessary implication, and is upheld by the great 
lavs^ of self-preservation ; as any government, whose means employed in 
conducting its oiierations, if subject to the control of another and distinct 
government, can exist only at the mercy of that government." 

Ill addition to this restriction upon both governments in 
tlie power of taxation, — that it cannot be exercised so as 
to impair the existence and efficiency of the other — there 
is a further restriction necessarily arising from the hmits 
of their territorial jurisdiction. I^either can exercise the 
taxing power upon property or persons beyond that juris- 
diction. The attempt to exercise it in that way would be 
regarded elsewhere as a mere abuse of authority. Says 
Chief Justice Marshall: "All subjects over which the sov- 
ereign power of a State extends are objects of taxation, but 
those over which it does not extend are upon the soundest 
principles exempt from taxation. This proposition may al- 
most be pronounced self-evident." — (4 Wheaton, 429.) 

This subject came before the Supreme Court for special 
consideration in the case of Railroad Company vs. Penn- 
sylvania, which is reported under the title of State Tax on 
Foreign-Held Bonds.— (15 Wall., 300.) In May, 1868, 
the Legislature of that State passed an act requiring the 
president, treasurer, or cashier of every corporation, ex- 
cept savings banks created under its laws and doing busi- 
ness there, which paid interest to bondholders or other 
creditors, to retain from them before such payment a tax 
of five per cent, upon every dollar of interest, and to pay 
ovei- the same semi-annually to the State treasurer for the 
use of the Commonwealth. 

In 1848 the Legislatui'e of Ohio incorporated the Cleve- 
land, Painesville and Ashtabula Kailroad Company, and 
authorized it to construct a railroad from the city of Cleve- 
land, in that State, to the line of the State of Pennsylva- 
nia. Under this act and its supplement, passed in 1850, 



tlic n^ad \v:is constructed. 111,1854 tlio Ijcuisiatui'c of I'oiin- 
syl\:iiiia antliorized the c(Mii])aiiy to coMstniet a road iVoni 
Kric, ill tliat State, to tlie State line of Oliio, so as to con- 
nect with tlie voad iVoni Clcvchind, and to [turchasc a 
I'oad already constructed between those places. This road 
was constructed, or tlie one c(nistfucted was purchased, so 
that the two roads etfected a continuons line hetweeii the 
cities of Cleveland and Erie a distance of iiinety-Hve and 
oue-half miles, twenty -tive of which were in Pennsylva- 
nia. The company, so far as it acted in Pennsylvania 
uiid(M- the authority of an act of its Le^'islature, was held 
to he a corporation in that State aud subject to its laws 
for the taxation of incorporated companies, thongh there 
was only one board of directors for both companies. ]n 
1<S68 the funded debt of the company amounted to two 
and one-half millions of dollars, and was in Ivnids secured 
liy three mortgages, — one for tive hundred thonsand dol- 
lars, made in 1854; one for a million of dollars, made 
in 1851), and one for a million dollars, made in 1867. 
Each of these was npon the entire road from Erie, in 
Pennsylvania, to Cleveland, in Ohio, including the right- 
of-way and all the buildings and other property of every 
kind connected with the road. The principal and interest 
of the bonds first issued were payable in Philadelphia. The 
principal and interest of the other bonds were payable 
in Xew York. All of them were executed and delivered 
in Cleveland, Ohio, and nearly all of them were issued, 
and were afterwards held by non-residents of Pennsyl- 
vania and citizens of other States. The officers of the 
State of Pennsylvania endeavored to enforce tlie tax im- 
posed by the act of 1868 upon the interest on these bonds, 
having first apportioned it according to the length of the 
road, assigning to the ptnrt in the State of Pennsylvania 
an amount in [irojiortion to the wdiole inde])tedness wliich 
that part bore to the whole road. The validity of the tax, 
so far as it applied to the interest on the bonds made pay- 
able out of the State, issued to and h(dd by non-residents 



of the State and citizens of other States, was contested in 
the courts of the State, first in the Common Pleas and 
then in the Supreme Court, and heing by them sustained, 
was brought to the consideration of tlie Supreme Court of 
the United States. In denying the vahdity of the tax, that 
Court, speaking through Judge Field, said as follows: 

" Tlie power of taxation, however vast in its character and searching 
in its extent, is necessarily limited to subjects within the jurisdiction of 
the State. These subjects are persons, property, and business. Whatever 
form taxation may assume, whether as duties, imposts, excises, or licenses, 
it miTst relate to one of these subjects. It is not possible to conceive of 
any other, though, as applied to them, the taxation may be exercised in 
a great variety of ways. It may touch property in every shape, in its nat- 
ural condition, in its nianufiictured form, and in its various transmuta- 
tions ; and the amount of the taxation may be determined by the value 
of the property, or its use, or its capacity, or its productiveness. It may 
touch business in the almost infinite forms in which it is conducted, in 
professions, in commerce, in manufactures, and in transportation. Un- 
less restrained by provisions of the Federal Constitution, the power of the 
State as to the mode, form, and extent of taxation is unlimited, where 
the subjects to which it applies are within her jurisdiction. Corpora- 
tions may be taxed like natural persons upon their property and business ; 
but debts owing by corporations, like debts owing by individuals, are not 
property of the debtors in any sense. They are obligations of the debtors 
and only possess value in the hands of the creditors. With them they 
are property, and in their hands they may be taxed. To call debts pro- 
perty of the debtors, is simply to misuse terms. All the property there 
can be in the nature of things in debts of corporations, belongs to the 
creditors to whom they are payable, and follows their domicile wherever 
that may be. Their debts can have no locality separate from the parties 
to whom they are due. This principle might be stated in many different 
ways, and supported by citations from numerous adjudications; but no 
number of authorities and no forms of expression could add anything to 
its obvious truth, which is recognized upon its simple statement. 

" The bonds issued by the railroad company in this case are undoubt- 
edly property, but property in the hands of the holders, not property of 
the obligors. So far as they are held by non-residents of the State, they 
are property beyond the jurisdiction of the State. The law which re- 
quires the treasurer of the company to retain five per cent, of the 
interest due to the non-resident bondholder is not, therefore, a legiti- 
mate exercise of the taxing power. It is a law which interferes between 
the company and the bondholder, and under the pretence of levying 
a tax commands the company to withhold a portion of the stipu- 
lated interest and pay it over to the State, It is a law which thus im- 



pairs llif obligation of a coiiliiK't iK'twuen the parties. The oljligalioii of 
a contract depends upon its terms and the moans wliicli tlie law in ex- 
istence at tlie time affords for its enforcement. A law wliich alters the 
terms of a contract by imposing new conditions, or dispensing with those 
expressed, is a law wliicb impairs its obligations, lor, as stated on another 
occasion, such a law relieves the parties from the moral duty of perform- 
ing the original stipulations of the contract, and it prevents their legal 
enforcement. The Act of I'ennsylvania of May 1st, 18(58, falls within 
this description. It directs the treasurer of every iueorporated company 
to retain from the interest stipulated to its bondholders five per cent, 
iipon every dollar and pay it into the treasury of the Commonwealth. It 
thus sanctions and commands a disregard of the express provisions of the 
contracts between the company and its creditors. It is only one of many 
cases where, under the name of taxation, an oppressive exaction is made 
without constitutional warrant, amounting to little less than an arbitrary 
seizure of private ])roperty. It is, in fact, a forced contribution levied 
iipon property held in other States, where it is subjected, or may be sub- 
jected, to taxation upon an estimate of its full value." 

" The case of 3Ialtby vs. The Heading and Columbia Railroad Company, 
decided by the Supreme Court of Pennsylvania in 1866, was referred to 
by the Common Pleas in support of its ruling, and is relied upon by 
counsel in support of the tax in question. The decision in that case does 
go to the full extent claimed, and holds that bonds of corporations held 
by non-residents are taxable in that State. But it is evident, from a pe- 
rusal of the opinion of the Court, that the decision proceeded upon the 
idea that the bond of the non-resident was itself property in the State, 
because secured by mortgage on property there. ' It is undoubtedly 
true,' said the Court, 'that the Legislature of Pennsylvtinia cannot im- 
pose a personal tax upon the citizen of another State, but the constant 
practice is to tax property within our jurisdiction which belongs to non- 
residents.' And again : ' There must be jurisdiction over either the prop- 
erty or the person of the owner, else the power cannot be exercised ; but 
when the property is within ovir jurisdiction, and enjoys the protection 
of our State government, it is justly taxable, and it is of no moment that 
the owner, who is required to pay the tax, resides elsewhere.' There is 
no doubt of the correctness of these views. But the Court then proceeds 
to state that the principle of taxation as the correlative of protection is 
as applicable to a non-resident as to a resident ; that the loan to the non- 
resident is made valuable by the franchises wliich the company derived 
from the Commonwealth, and as an investment rests upon State author- 
ity, and therefore ought to contribute to the support of the State gov- 
ernment. It also adds that though the loan is for some purposes subject 
to the law of the domicile of the holder, 'yet, in a very high .sense,' it is 
also pro])erty in Pennsylvania, observing in support of this position that 
the liolder of a bond of the company could not enforce it except in that 
State, and that the mortgage given for its security was upon property and 



280 

franchises within her jurisdiction. Tlie amount of all Avhich is this : 
that the State which creates and protects a corporation ought to have the 
right to tax the loans negotiated by it, though taken and held by non- 
residents, a proposition which it is unnecessary to controvert. The le- 
gality of a tax of that kind would not be questioned if, in the charter of 
the company, the imposition of the tax were authorized, and in the bonds 
of the company, or its certificates of loan, the liability of the loan to tax- 
ation were stated. The tax in that case would be in the nature of a li- 
cense tax for negotiating the loan, for, in whatever manner made payable, 
it would ultimately fall on the company as a condition of effecting the 
loan, and parties contracting with the company would provide for it by 
proper stipulations. But thei'e is nothing in the observations of the 
Court, nor is there anything in the opinion, which shows that the bond 
of the non-resident was property in the State, or that the non-resident 
had any property in the State which was subject to taxation, within the 
principles laid down by the Court itself, which we have cited. The 
property mortgaged belonged' entirely to the company, and so tar as it 
was situated in Pennsylvania was taxable there. If taxation is the cor- 
relative of protection, the taxes which it there paid were the correlative 
for the jirotection which it there received. And neither the taxation of 
the projierty nor its protection was augmented or diminished by the fact 
that the corporation was in debt or free from debt. The property in no 
sense belonged to the rion-resident bondholder or to the mortgagee of the 
company. The mortgage transferred no title ; it created only a lien upon 
the property. Though in form a conveyance, it was both at law and in 
equity a mere security for the debt. That such is the nature of a mort- 
gage in Pennsylvania has been frequently ruled by her highest Court. 
In Witmer's Appeal the Court said : 'The mortgagee has no estate in the 
land, any more than the judgment creditor. Both have liens upon it, 
and no more than liens.' And in that State all possible interests in lauds, 
whether vested or contingent, are subject to levy and sale on execution ; 
yet it has been held, on the ground that a mortgagee has no estate in the 
lands, that the mortgaged premises cannot be taken in execution for his 
debt Such being the character of a mortgage in Penn- 
sylvania, it cannot be said, as was justly observed by counsel, that the 
non-resident holder and owner of a bond, secured by a mortgage in that 
State, owns any real estate there. A mortgage being there a mere chose 
in action, it only confers upon the holder, or the party for whose benefit 
the mortgage is given, a right to jiroceed against the property mortgaged, 
upon a given contingency, to enforce, by its sale, the payment of his de- 
mand. This right has no locality independent of the party in whom it 
resides. It may undoubtedly be taxed by the State when held by a resi- 
dent therein, but when held by a non-resident, it is as much beyond the 
jurisdiction of the State as the person of the owner. 

" It is undoubtedly true that the actual situs of personal projjcrty, 
which has a visililo and tangible existence, and not tlie domicile of its 



•281 

owner, will, in iminy cases. (Ictcriiiiiic llic Slate in which it may lie taxed. 
The same thinn is tiu(^ oT pulilic securities, consisting of State bonds and 
bonds of municipal biidics, and cireulatinu; notes of banking institutions ; 
the former, by general usage, have ae.|iiircd the character of and are 
treated as property in the place w lure they are Inuiid, though removed 
from the domicile of the owner ; the latter are treated and pass as 
money wherever they are. But other personal property, consisting of 
bonds, mortgages, and debts generally, has no situs independent of the 
domicile of the owner, and certainly can have none wliere the instru- 
ments, as in the present case, constituting the evidences of del)t, are not 
separated from the ])ossession of the owners. 

"Cases were cited by counsel on the argument from the decisions of 
the highest Courts of several States, which accord with the views we 
have expressed. In Davenport vs. The Mississippi and 3Iissoun Railroad 
Company {\2 loica, 539), the question arose l)etbre the Supreme Court of 
Iowa, whether mortgages on property in that State held by non-residents 
could be taxed under a law which provided that all property, real and 
personal, within the State, virith certain exceptions not material to the 
present case, should be subject to taxation, and the Court said : ' Both 
in law and equity the mortgagee has only a chattel interest. It is true 
that the situs of the property moxtgaged is within the jurisdiction of the 
State, but the mortgage itself, being personal property, a chose in action, 
attaches to the person of the owner. It is agreed by the parties that the 
owners and holders of the mortgages are non-residents of the State. If 
so, and the property of the mortgage attaches to the person of the owner, 
it follows that these mortgages are not property within the State, and if 
not, they are not the subject of taxation.' 

" Some adjudications in the Supreme Court of Pennsylvania were also 
cited on the argument, which appear to recognize doctrines inconsistent 
with that announced in Malthy vs. Beading and Cohunhia Railroad Com- 
pany, particularly the case of MeKeen vs. The County of Northampton, and 
the case of ShorVs Estate, but we do not deem it necessary to pursue the 
matter further. We are clear that the tax cannot be sustained ; that the 
bonds, being held* by non-residents of the State, are only property in their 
hands, and that they are thus beyond the jurisdiction of the taxing power 
of the State. Even where the bonds are held by residents of the State, 
the retention by the company of a portion of the stipulated interest can 
only be sustained as a mode of collecting a tax upon that species of prop- 
erty in the State. When the property is out of the State, there can then 
be no tax upon it for which the interest can be retained. The tax laws 
of Pennsylvania can have no extra-territorial operation, nor pan any law 
of that State, inconsistent with the terms of a contract made with or pay- 
able to parties out of the State, have any effect upon the contract wiiilst 
it is in the hands of such parties or other non-residents. The extra-ter- 
ritorial invalidity of State laws discharging a debtor from his contracts 
with citizens of other States, even though made and payable in the State 



282 

after the passage of such laws, has been .judicially determined by this 
Court. A like invalidity must, on similar grounds, attend State legisla- 
tion which seeks to change the obligation of such contracts in any par- 
ticular, and on stronger grounds where the contracts are made and paya- 
ble out of the State." 



There ai-e other Umitations upon the power of taxation 
by the States imposed by their respective constitutions, de- 
signed to secure, as far as practicable, an equal distribution 
of the burdens of government, by requiring a uniform 
rate of taxation upon property of the same kind, and a 
uniform mode of assessment or appraisement of value. 
Of these it is not the purpose of this narrative to s[)eak. 
There is, however, in the Fourteenth Amendment a clause 
which, according to the force attributed to it by Judge 
Field, may yet be invoked to prevent the imposition of 
unequal taxation by the States, of which there are so many 
daily complaints throughout the country — the clause which 
declares that no State shall " deny to any person, within 
its jurisdiction, the equal protection of the laws." In his 
opinion in the Virginia Jury Ceases, he contended that the 
prohibitions of the Fourteenth Amendment being against 
the State, can only be properly enforced through the 
action of the judiciary, in like manner as the prohibition 
against the passage of a bill of attainder or an ex post facto 
law, or a law impairing tlie obligation of contracts ; — in 
other w^ords, that a law of a State can 1)0 annulled only 
through the judiciary, and not by criminal proceedings 
against its legislators, judges, and other ofhcers. He also 
contended that the clause mentioned applies only to civil 
rights and not to political or social rights; and yet he gave 
to it an immense force for the protection of private rights 
against arlntrary and unequal legislation of the States. 
His language is as follows : 

" It opens the Courts of the country to every one, on the same terms, 
for the security of his person and property, the prevention and redress 
of wrongs, and the enforcement of contracts ; it assures to every one the 
same rules of evidence and n)odes of procedure ; it allows no inipedi- 



288 

nicnts to the aaiiiisitiou ol' property ami (lie pnr.suil ol' haiipiiiess, to 
wliich all are not subjected; it suffers no other oi- (jreali r liiinlnix m- c/uiri/cs 
to be laid upon one than sueh as arc cquallij borne hi/ othi m ; ami in tlie ad- 
ministration of criniinal justice it jn'miits no ditVerent or greater i)unisli- 
nient to be imposed upon one than such as is prescribed to all for like 
otfences." 

The clause was intended to seeure equality oi" ri^'lit to 
every person within the States, and this necessarily inii»He8 
that he sliall not he su1)jected to any i^jreater burdens than 
his fellows. "If one, tlierefore, is arl)itrarily taxed by a law 
of a State at live per cent, on the value of his propci'ty, 
while others are taxed on the value of the same kind of 
})roperty oidy one per cent., or if he l)e thus taxed because 
he [)ursues one calling or trade, or because he is black or 
brown or yellow in his color, whilst those of another pur- 
suit or of a (lilierent color are taxed at a lower rate, he is 
sul)jected to an unecpial share of tlie public burdens and 
may justly invoke the protection of the amendment 
against the action of the State. 

In People vs. Weaver, where equality in taxation was 
disregarded l)y a law of the State of New York in the face 
of a law of Congress, the Suj)reme Court declared the 
State Liw invalid.— (10 Otto, 539.) Upon the same prin- 
ciple a State law sanctioning the imposition of unequal 
burdens must fall before the constitutional amendment. 



The Tiu'st Character of Directors of Corporations. 

In the preceding pages, from 216 to 255 inclusive, a 
statement is made of several opinions of Judge Field re- 
specting the powers and liabilities of corporations. Dur- 
ing the past term, in the case of Wardell vs. The Union 
Pacific Railroad Company, he delivered another opinion 
touching the obligations of the directors of sucli bodies 
and the fiduciar}^ character of their office. The case arose 
in this way. The road of the ITnion Pacific Company 
passes for its entire length, from Omaha, on the Missouri 



284 

River, to Ogden, in Utah, a distance of over one thousand 
miles, throngli a country ahnost destitute of timber iit for 
fuel. During its construction, however, \nrge deposits of 
coal, of excellent quahty and easily worked, were discov- 
ered in land along its line from whicli abundant supphes 
could be obtained for the use of the company. The en- 
gineers, appointed to survey the route for the road, re- 
ported the existence of such deposits. In June, 1868, one 
Thomas Wardell made exjilorations for coal in the lands 
of the company, and reported to its managers the informa- 
tion which he had thus acquired, wliich was confirma- 
tory of that previously obtained from tlie engineers. 
A contract was then- entered into between the company 
and himself and one Godfrey, with whom he had become 
associated in business, to fui-nish the company with coal 
required for its use. This contract, which is dated July 
IGth, 1868, stipuhxted for exorbitant prices; and by it all 
the coal lands of the company were leased to Wardell and 
Godfrey for fifteen )'ears. They immediately entered up(ju 
the execution of the contract and liegan work on several 
mines along the line of the road. Soon afterwards God- 
frey transferred his interest in the contract to Wardell. A 
new company was then formed called the Wyoming Coal 
and Mining Company, of which the directors of the Union 
Pacific Railroad Company became the chief shareholders. 
To this company Wardell assigned his contract without 
any consideration. The conqnuiy continued the execution 
of the contract, AYardell acting as its superintendent, sec- 
retary, and general manager, and delivei"edcoal as needed 
to the railroad company up to March, 1874, when the of- 
ficers and agents of that company, by order of its directors, 
took forcible possession of the mines and of the books, 
papers, tools, and other personal property of the coal com- 
pany, which they continued to hold and use. Some 
months after this the two companies, through their direc- 
tors, made a settlement of their matters of difference, b}^ 
which the contract of July 16th, 1868, was rescinded 



2sr) 

and oiu' iiiillioii dollars was allowed to the i-oal coin- 
pany. Of tliis million tlu" railroad t'()in[>any set apart 
and tendered to Wardell one liundivd tlionsand dollars 
for his share, lie, not being satisfied with tli(> settle- 
ment, l)ronglit a snit, in his own nanu', against the rail- 
road eompany, alleging as a reason that a majority of the 
dii'eetors and stoi'khoiders of the eoal c-ompany were also 
directors and stot-kliolders of the I'aih'oad eom[»any, and 
that therefore he could ohtain no relief hy a suit in 
the name of the coal eompany. lie prayed that an 
account ndght be taken of the anvount due for the 
coal delivered to the railroad com[»any, for drawback on 
freight from the date of the contract, for coal extracted 
from the nunes since their seizure and for the proi)erty of 
the coal company taken, and for the damages arising fi'om 
the attempted abrogation of the contract. To this suit the 
railroad company set up, among other tilings, that tlie con- 
tract of July Kith, 1<S()8, was a fraud upon the company, 
that it was made on the part of the executive comnnttee 
of its ])oard of directoi's, a majority of wliom wei'e, by pre- 
vious agreement, to be eipially interested witli the con- 
tractors, and for that I'eason its terms were made so fa\'or- 
able to tliem and unfavorable to tlie company, as to enable 
the former to make large gains at tiie expense of the lat- 
ter; and that the organization of the coal company was a 
mere device to enable those directors to participate in the 
profits; and also that a settlement had been made between 
the two companies of all their transactions. 

The court below^ field that the contract of July 1(J, 18(38, 
w'as a- fraud upon the companj", but that the complainant 
was, a[iart from it, entitled to some compensation for his 
time, skill, and services wdiile engaged in taking out the 
coal, with the return of tlie money actually invested and 
compensation for its use, the amount to be credited with 
w^hat he had actually received out of the business; and 
that at his election he coidd ha\'e an accounting U[)on that 
fiasis or take the one hundred thousand dcdlaj's tendered 



286 

by the company. Of the alternatives thus offered he 
elected to take the one hundred thousand dollars instead 
of having the accounting mentioned, but appealed to the 
Supreme Court from the decree, contending that the con- 
tract itself was valid, and that he was entitled to an ac- 
counting upon that hypothesis, but the judgment was there 
afhrmed. Of the contract and of the obligations of the di- 
rectors of the railroad company, that Court, speaking 
through Judge Field, said as follows : 

" The evidence in the case justifies tlie conclusion of the court below 
as to the nature of the contract of July 16th, 1868. It was evidently 
drawn more for the benefit of the contractors than for the interest of the 
company. The extent, value, and accessibility of the coal deposits along 
the line of the road of the company were, as stated above, well known at 
the time to its directors, having the immediate control and management 
of its business. Wardell, the principal contractor, informed those with 
whom he chiefly dealt in negotiating the contract, that coal could be de- 
livered to the company at a cost of two dollars per ton, yet the contract, 
which was to remain in force fifteen years, stipulated that the company 
should pay treble this amount per ton for the coal the first two years, two 
and a half times the amount for the next three years, twice the amount 
for the following four years, and one-half more for the balance of the time. 
And lest these rates might prove too little, the contract further provided 
that the sum paid should not be less than ten per cent, added to the cost 
of the coal to the contractors. These terms and the leasing of all the 
coal lands of the company for fifteen years to those parties upon a royalty 
of twenty-five cents a ton for the first nine years, and without any royalty 
afterwards if the price of the coal should be reduced to three dollars, 
with the stipulation to provide side-tracks to the mines, and also to fur- 
nish cars for transportation of coal for general consumption, and after 
charging them only what was charged to others, to allow them a draw- 
back of twenty-five per cent, on the sums paid, gave to them a contract 
of the value of millions of dollars. These provisions would of them- 
selves justly excite a suspicion that the directors of the railroad com- 
pany, who authorized the contract on its behalf, had been greatly de- 
ceived and imposed upon, or that they were ignorant of the cost at which 
the coal could be taken from the mines and delivered to the company. 
But the evidence shows that those directors were neither deceived nor 
imposed upon, nor were they without information as to the probable 
cost of taking out and delivering the coal. And what is of more im- 
portance, it shows, as alleged, their previous agreement with the con- 
tractors for a joint interest in the contract, and, in order that they might 
not appear as co-contractors, that a corporation should be formed in 
which they should become stockholders, and to which the contract should 



287 

be assigned; and that this agreement was carried ont 1)y tlie suhseqnent 
ibrmatiou of the Wyoming Mining and Coal Comi)aiiy and their taking 
stock in it. This matter was so well understooil tliat when tlie eon- 
tractors commenced their work in developing the mines and taking 
out the coal, they kept their acconnts in the name of the proywsed 
company, though no such company was organized until months after- 
wards. 

" It hardly requires argument to show that the scheme thus designed to 
enable the directors, who authorized the contract, to divide with the 
contractors large sums which should have been saved to the company, 
was utterly indefensible and illegal. Those directors, constituting the ex- 
ecutive committee of the board, were clothed with power to manage the 
atfairs of the company for the benefit of its stockholders and creditors. 
Their character as agents forbade the exercise of their powers for their 
own personal ends against the interest of the company. They were 
thereby precluded from deriving any advantage from contracts made by 
their authority as directors, except through the company for which they 
acted. Their position was one of great trust, and to engage in any matter 
for their personal advantage inconsistent with it was to violate their duty 
and to commit a fraud upon the company. 

" It is among the rudiments of the law that the same person cannot 
act for himself and at the same time, with respect to the same matter, 
as the agent for another whose interests are conflicting. Thus a person 
cannot be a purchaser of property and at the same time the agent of the 
vendor. The two positions impose dift'erent obligations, and their union 
would at once raise a conflict between interest and duty ; and ' consti- 
tuted as humanity is, in the majority of cases duty would be overcome 
in tlie struggle.'— (Marsh vs. Whitmore, 21 AVallace, 183.) The law, 
therefore, will always condemn the transactions of a party on his own 
behalf when, in respect to the matter concerned, he is the agent of others, 
and will relieve against them whenever their enforcement is seasonably 
resisted. Directors of corporations, and all persons who stand in a fiduci- 
ary relation to other parties, and are clothed with power to act for them, 
are subject to this rule; they are not permitted to occupy a position 
which will conflict with the interest of parties they represent and are 
bound to protect. They cannot, as agents or trustees, enter into or au- 
thorize contracts on behalf of those for whom they are appointed to act, 
and then personally participate in the benefits. Hence all arrangements 
by directors of a railroad company, to secure an undue advantage to 
themselves at its expense, by the formation of a new company as an aux- 
iliary to the original one, with an understanding that they, or some of 
them, shall take stock in it, and then that valuable contracts shall be 
given to it, in the profits of which they, as stockholders in the new com- 
pany, are to share, are so many unlawful devices to enrich themselves to 
the detriment of the stockholders and creditors of the original company, 
and will be condemned whenever properly brought before the Courts for 



1>SS 

comidcration. — (Gveiit Lnxt'in1)t)urg Co. vs. ]M;igiiny, 2.") Beavnn, 586 ; " 
Benson vs. Heathorn, 1 Young & Coll., 326 ; Flint & Pere Marquette Ji. 
E. Co. vs. Dewey, 14 Michigan, 477 ; European & N. American R. R. Co. 
vs. Poor, 59 Maine, *277; and Drary vs. Cross, 7 Wall., 299.) 

" The scheme disclosed here has no feature which relieves it of its 
fraudulent character, and the contract of July 16, 1868, which was an es- 
sential part, of it, must go down with it. It was a fraudulent proceeding 
on the ])art of the directors and contractors who devised and carried it 
into execution, not only against the company, but also against the gov- ' 
ernment, which had largely contributed to its aid by the loan of bonds 
and by the grant of lands. By the very terms of the charter of the com- 
pany live per cent, of its net earnings were to be paid to the government. 
Those earnings were necessarily reduced by every transaction which 
took from the company its legitimate profits. It is true that some of the 
directors, who approved of or did not dissent from the contract, early 
stated that they held their stock in the coal company for the benefit of 
the railroad company, and transfen-ed it, or were ready to transfer it, to 
the latter ; but the majority expressed such a purpose only when the 
character and terms of the contract became known and they were desir- 
ous to screen themselves from censure for their conduct. 

" The complainant, therefore, can derive no benefit from the contract 
thus tainted, or sustain any claim against the railioad company for its 
repudiation." — (13 Otto.j 



The Use of KuNNiNa Waters on the Ptblic Lands. 

Wlien it was known that gold liad been discovered in 
California, and existed in such form and quantity as to re- 
ward individual exploration and labor, an immense immi- 
gration set in foi- the country. Gold-seekers came from 
all parts of tlie world, and in such numbers as to swell 
the population in three or four years from a few tliou- 
sands to over half a million. A great number of these— 
perhaps one-third — remained in the cities and engaged in 
commerce, or settled upon the fertile binds in the valleys 
and cultivated the soil, or raised cattle from the rich pas- 
turage afforded. The greater portion spread over the 
mineral region, which was chiefly in the Sierra Xevada 
Mountains. The title to the whole of the lands compos- 
ing tills region was in the United States, and no law had 



:28!i 

been passed which provided i'or their occnpatioii and [>ur- 
cliase. The riii'lits wliich the miners asserted were merely 
possess(^ry. and to protect each other in tiicir psssession 
and in extracting;- gold from the hinds, they were com- 
pelled to adopt certain rules foi- their government. The 
character, justice, and wisdom of the rules established by 
them in dilferent localities, are fully stated in an opiinon 
delivered by Judge Field in the Supreme Court, in the 
case of Jennison vs. Kirk, (8 Otto, 457,) an extract of 
which is given on pages 6, 7, and 8 of this volume. 

In working the mines water was a necessity; without it 
gold could not be separated from the earth or rock in 
which it was buried. The ^loctrines of the common law 
relating to the rights of riparian proprietors were not ap- 
plicable to the conditions and wants of the miners. They 
accordingly adopted rules for the regulation of the pos- 
session and use of watei', as they had done for the posses- 
sion and working of their mining claims. These regula- 
tions controlled the disposition of properties of the value 
of many millions. 

The same general system of regulations, so inti'insically 
just w^ere they deemed, was established by iinnei's in the 
territor}' east of the Sie'rra jSTevada Mountains — in I^Te- 
vada, Montana, and Idaho; indeed, wdierever the precious 
metals were found. Questions arising under them were 
constantly before the local Courts, and in some instances 
found their way to the Su})reme Court of the United States. 
In Atchison vs. Peterson,* which was before that Court 
in 1874, the question was presented as to the right, from 
prior appropriation, to the use for mining purposes of the 
water of a stream without deterioration in quality and 
value. The suit was brought to restrain the defendants 
from carrying on certain mining work on a creek in the 
Territory of Montana, on the alleged ground that the 
water, diverted by the complainants from the stream for 
mining purposes, was, by such work, thus deteriorated. 



'■■ 20 Wall.. 50- 



290 

TliG coiuiiliunaiits were tlie owners of two ditches or canals, 
consti-ucted at a cost of |117,000, l)y which the creek was 
tapped and the water diverted and convej-ed a distance of 
eighteen miles to certain mining districts, and there sold 
to miners. At a point about fifteen miles above the place 
where the creek was thus tapped the defendants were work- 
ing mining ground, which they had acquired subsequently 
to the time when the complainants commenced the con- 
struction of the ditches. In some places in their work the 
defendants washed down tlie earth from the side of the 
hills bordering on the stream; in other places they exca- 
vated the earth, and threw such portions as were supposed 
to contain gold into sluices, upon which the w^ater was 
turned. The earth from the washings on the hillsides, 
and from the sluices, was carried into the creek and af- 
fected its whole current, filling the water to some extent 
with mud, sand, and sediment. The evidence as to the 
extent of the deterioration was conflicting, but tlie great 
preponderance of it was to the efiect that the injury in 
quality from this cause, at the point where the complain- 
ants tapped the stream, was so slight as not, in any mate- 
rial extent, to impair the value of the water for mining, 
or to render it less salable to the miners at the places 
where it was carried. 

The District Court denied the injunction, and the Su- 
preme Court of the Territorj^ affirmed the decree, and the 
case was taken to the Supreme Court. In affirming the 
decree that Court, speaking through Judge Field, said as 
follows: 

" By the custom which has obtained aniong miners in the Pacific States 
and Territories, where mining for the precious metals is had on the pub- 
lic lands of the United States, the first appropriator of mines, whether in 
placers, veins, or lodes, or of waters in the streams on such lauds for min- 
ing purposes, is held to have a better right than others to work the mines 
or use the waters. The first appropriator who subjects the property to 
use, or takes the necessary steps for that purpose, is regarded, except as 
against the government, as the source of title in all controversies relating 
to the property. As respects the use of water for mining purposes, the 
doctrines of the common law declaratory of the rights of riparian owners 



291 

were, ;i1 an early tlay, after tlic discDvcry of <;'(il(l, I'ound to lie iiiaiiplica- 
ble or applicable only ill a very limited extent lo tiie necessities o I' llie 
miners, and iiuule(iuate to tlieir protection. By the common law tlie ri- 
l»arian owner on a stream not navigable, takes the hind to the centre of 
the stream, and such owner has the right to the use of the water Ilovvin<; 
over the land as au incident to his estate. And as all such owners on the 
same stream liave an equality of right to the use of the water, as it nat- 
urally flows, in quality, and without diminution in quantity, except so 
far as such diminution may be created by a reasonable use of the water 
for certain domestic, agricultural, or manufacturing purposes, there could 
not be, according to that law, any such diversion or use of the water by 
one owner as would work material detriment to any other owner 
below him. Nor could the water by one owner be so retarded in its flow 
as to be thrown back to the injury of another owner above him. ' It is 
wholly immaterial,' says Mr. Justice Story, in Tyler vs. Wilkinson, 
' whether the party be a proprietor above or below in tlie course of the 
river; the right being common to all the proprietors on the river, no one 
lias a right to diminish the quantity which will, according to the natural 
<'urreut, flow to the proprietor below, or to throw it back upon a proprie- 
tor above. This is the necessary result of the perfect equality of right 
among all the proprietors of that which is common to all.'* ' Every pro- 
prietor of lands on the banks of a river,' says Kent, 'has naturally an 
e((ual right to the use of the water which flows in the stream adjacent to 
his lands, as it was wont to run (carrere solehat) without diminution or 
alteration. No proprietor has a right to use the water to the prejudice 
of other proprietors above or below him, unless he has a prior right to 
divert it, or a title to some exclusive enjoyment. He has no property in 
the water itself, but a simple usufruct while it passes along. Aqua cur- 
rit et debet ctirrere ut currcre solebat. Though he may use the water while 
it runs over his land as an incident to the land, he cannot unreasonably 
detain it or give it another direction, and he must return it to its ordinary 
chaunel when it leaves his estate. Without the consent of the adjoining 
proprietors he cannot divert or diminish the quantity of the water which 
would otherwise descend to the proprietors below, nor throw the water 
back upon the proprietors above witliout a grant or an uninterrupted en- 
joyment of twenty years, which is evidence of it. This is the clear and 
settled doctrine on the subject, and all the difficulty which arises consists 
in the application.'! 

" This equality of right among all the proi)rietors on the same stream 
would have been incompatible with any extended diversion of the ^\■ater 
l)y one proprietor, and its conveyance for mining pui'poses to points from 
which it could not be restored to the stream. But the government 
being the sole proprietor of all the public lands, whether bordering on 
streams or otherwise, there was no occasion for the application of the com- 

* 4 Mason, :?79. f-^ Kent's C'oium., 439. 

20 



292 

inou-law doctrine of riparian proprietorship with respect to the waters of 
those streams. The government, by its silent acqniescence, assented to 
the general occupation of the public lands for mining, and, to encourage 
their free and unlimited use for that purpose, reserved such lands as 
were mineral from sale and the acquisition of title by settlement. And 
he who first connectshis own labor with property thus situated and open to 
general exploration, does, in natural justice, acquire a better right to it.s 
use and enjoyment than others who have not given such labor. So the 
miners on the public lands throughout the Pacific States and Territories 
by their customs, usages, and regulations everywhere recognized the in- 
herent justice of this principle, and the principle itself was at au early 
period recognized by legislation and enforced by the courts in those States 
and Territories. In Irwin vs. Phillips,* a case decided by the Supreme 
Court of California in January, 1855, this subject was considered. After 
stating that a system of rules had been permitted to grow up with re- 
pect to mining on tlie public lands by the voluntary action and assent of 
the population, whose free and unrestrained occupation of the mineral 
region had been tacitly assented to by the federal government, and heartily 
encouraged by the expressed legislative policy of the State, the Court 
said : ' If there are, as must beadmitted, numy things connected with this 
system which are crude and undigested, and subject to fluctuation and 
dispute, there are still some which a universal sense of necessity and 
propriety have so firmly fixed as that they have come to be looked upon 
as having the force and, effect of res «(//Mrfic«/rt. Among these the most 
important are the rights of miners to be protected in their selected local- 
ities, and the rights of those who, by prior appropriation, have taken the 
waters from their natural beds, and by costly artificial works have con- 
ducted them for miles over mountains and ravines to supply the neces- 
sities of gold diggers, and without which the most important interests of 
the mineral region would remain without development. So fully recog- 
nized have become these rights, that without any specific legislation con- 
ferring or confirming them, they are alluded to and spoken of in various 
acts of the Legislature in the same manner as if they were rights which 
had been vested by the most distinct expression of the will of the law- 
makers.' 

" This doctrine of right by prior appropriation, was recognized by the 
legislation of Congress in 1866.t The act granting the right of way to 
ditch and canal owners over the public lands, and for other purposes, passed 
on the 26th of July of that year, in its ninth section declares ' that when- 
ever, by priority of possession, rights to the use of water for mining, 
agricultural, manufacturing, or other purposes, have vested and accrued, 
and the same are recognized and acknowledged by the local customs, laws, 
and decisions of courts, the possessors and owners of such vested rights 
shall be maintained and protected in the same.' 

* 5 Cal,, 140, 1 14 Stats, at Large, 253. 



0()0 

"Tlic riu'lit 1(( wilier ))y prior ;xpi>r(ii)ii;i1 ion, (liiis r(H'oi;!ii/.c(l and cstali- 
lislicd .IS Hr" law ol' minors on the mineral lands of Die imlilie domain, 
is limited in every ease, in (inantity and (|nali1y, hy tlie uses for wliicli 
the appropriation is made. A dilVerenl use of llie water sul)se(|uenl ly 
does not aiitect the riuht ; that is subject, to the same limitations, wli;il- 
ever the U.se. The appropriation does not eonl'er sueli an absolute ri.nlit 
to the body of the water diverted that the owner can allow it, after its 
diversion, to run to waste, and prevent others from usin<i- it for mininji 
or other leaitimate jturposes; nor does it confer such a rij;ht that he can 
insist upon the flow of the water without deterioration in (piality, wliere 
such deterioration does not defeat nor inipair the uses to which the water 
is applied. 

"Such was the purport of the ruling of the Supreme Court of Cali- 
fornia in Butte Canal and Ditch Company vs. Vaughn,* where it was 
held that the first appropriator had only the right to insist that the water 
sliould be subject to his use and enjoyment to the extent of his original 
appropriation, and that its quality should not be impaired so as to de- 
feat the purpose of that appropriation. To this extent, said the Court, 
his rights go, and no farther; and that, in subordination to them, subse- 
quent appropriators may use the channel and waters of the stream, and 
mingle with its waters other waters, and divert them as often as they 
choose ; that whilst enjoying his original rights, the first appropriator had 
no cause of complaint. In the subsequent case of Ortman vs. Dixon f 
the same Court held to the same purport, that the measure of the right 
of the first appropriator of the water, as to extent, follows the nature of 
the appropriation, or the uses for which it is taken. 

" What diminution of quantity, or deterioration in quality, will consti- 
tute an invasion of the rights of the first appropriator, will depend upon 
the special circumstances of each ca.se, considered with reference to the 
uses to which the water is applied. A slight deterioration in quality 
might render the water unfit for drink or domestic purposes, whilst it 
would not sensibly impair its value for mining or irrigation. In all con- 
troversies, therefore, between him and parties subsequently claiming the 
water, the question for determination is neces.sarily whether his use and 
enjoyment of the water, to the extent of his original appropriation, have 
been impaired by the acts of the defendant. But whether, upon a peti- 
tion or bill asserting that his prior rights have been thus invaded, a Court 
of Equity will interfere to restrain the acts of the party complained of, 
will depend upon the character aud extent of the injury alleged, whether 
it be irremediable in its nature, whether an action at law would afford 
adequate remedy, whether the parties are liable to respond for the dam- 
ages resulting from the injury, and other considerations which ordinarily 
govern a Court of Equitj' in the exerctise of its preventive process of in- 
junction." 

* 11 Cal., 14.3. See, also, I.obdell vs. Simpson, 2 Nev., 274. 
1 1?, Cal., :«. 



294 

The Court then proceeded to apply the principles thus 
stated to tlie sohition of the questions presented, and 
affirmed the decree. 

In Basev vs. Gallagher * the question arose wliether a 
right to running waters on the public lands of the United 
States for purposes of irrigation could be acquired by prior 
appropriiition as against parties not having the title of the 
government. The District and Supreme Courts of Mon- 
tana having sustained the affirmative of this question, the 
case in which it arose was brought before the Supreme 
Court of the United States. In giving its judgment the 
Court referred to Atchison vs. Peterson, above mentioned, 
which was decided at the same term, stated what had been 
held in that case, and then, speaking through Judge Field, 
said as follows: 

"The views there expressed and the rulings made are equally applica- 
ble to the use of water on the public- lauds for purposes of irrigation. 
No distinction is made in those States and Territories [of the Pacific 
Coast] by the custom of miners or settlers, or by the Courts, in the rights 
of the first appropriator from the use made of the water, if the use be a 
beneficial one. 

" In the case of Tartar vs. The Spring Creek Water and Mining Com- 
pany, decided in 1855, the Supreme Court of California said ; ' The cur- 
rent of decisions of this Court go to establish that the policy of this 
State, as derived from her legislation, is to permit settlers in all capacities 
to occupy the i)ublic lands, and by such occupation to acquire the right 
of undisturbed enjoyment against all the world but the true owner. In 
evidence of this, acts have been passed to protect the possession of agri- 
cultural lands acquired by mere occupancy ; to license miners; to pro- 
vide for the recovery of mining claims ; recognizing canals and ditches 
which were known to divert the water of streams from their natural 
channel for mining purposes ; and others of like character. This pol- 
icy has been extended equally to all pursuits, .snd no partiality for one 
over another has been evinced, except in the single case where the rights 
of the agriculturalist are niade to yield to those of the miner where 

gold is discovered in his land The policy of the exception is 

obvious. Without it the entire gold region might have been inclosed 
in large tracts, under the pretence of agriculture and grazing, and event- 
ually what Avould have sufficed as a rich bounty to many thousands 
would be reduced to the proprietorship of a few. Aside from this the 
legislation and decisions have been uniform in awarding the right of 

* 30 Cal., 671, 



295 

peac(nvl)le enjoyment to tlie first occupant, cither of the kuul or of any- 
thing incident to the land.'* 

"Ever since that decision it has heen hold generally thioughout tlie 
I'acific States and Territories that the right to water by prior appropria- 
tion lor any beneficial purpose is entitled to protection. AYater is di- 
verted to propel machinery in flour-mills and saw-niills, and to irrigate 
land for cultivation, as well as to enable miners to w ork their mining 
claims; and in all such cases the right of the first appropriator, exercised 
within reasonable limits, is respected and enf(jrced. We say within rea- 
sonable limits, for this right to water, like the right by prior occupancy 
to mining ground or agricultural land, is not unrestricted. It must be 
exercised with reference to the general condition of the country and the 
necessities of the people, and not so as to deprive a whole neighborhood 
or comnuinity of its use, and vest an absolute monopoly in a single indi- 
vidual. The act of Congress of 1866 recognizes the right to water by 
prior appropriation for agricultural and manufacturing purposes, as well 
as for mining. Its language is : 'That whenever by priority of posses- 
sion rights to the use of water for mining, agricultural, manufacturing, 
or other purposes have vested and accrued, and the same are recognized 
and acknowledged by the local customs, laws, and decisions of courts, 
the possessors and owners of such vested rights shall be maintained and 
protected in the same.' 

" It is evident that Congress intended, although the language used is 
not happy, to recognize as valid the customary law with respect to the 
use of water, which had grown up among the occupants of the public 
land under the peculiar necessities of their condition ; and that law may 
be shown by evidence of the local customs, or by the legislation of the 
State or Territory, or the decisions of the courts. The union of the three 
conditions, in any particular case, is not essential to the perfection of the 
right by priority ; and in case of conflict between a local custom and a 
statutory regulation, the latter, as of superior authority, must necessarily 
control." 

* Per Heydeufeldt, J., 5 California, 397. 



296 



CASES IN THE CIRCUIT COURT OF THE UNITED 
STATES FOR THE DISTRICT OF CALIFORNIA. 



As mentioned in the preceding pages, Judge Field, upon 
his appointment, was assigned to the circuit composed of 
the Pacific States, Cahfornia and Oregon, to which Nevada, 
on her hecoming a State, was added. It was his duty to 
attend the sessions of the Supreme Court at Washington 
in the winter, and to hold the Circuit Court in his circuit 
in summer. Until tlie passage of the act of 1869, pro- 
viding for the appointment of Circuit Judges, the Circuit 
Court, in his absence, was held by the District Judge of 
the district. Since then he has only been required to at- 
tend a term in each district of his circuit once in two 
years. He has, however, visited the circuit every year, 
until the present one (1881), since his appointment, and 
has generally held court in all its districts. 

The cases brought befoi'e the Circuit Court liave not 
only been of the variety and importance, which have gen- 
erally characterized the litigation in the Federal Courts 
of other circuits, but many of them have had special inter- 
est, arising either from accidental circumstances or circum- 
stances peculiar to the coast. 

United States vs. Greatiiouse. 

At the first term of the circuit at which Judge Field 
presided, after his appointment, the case of the United 
States vs. Greathouse and others, was tried. Growing out 
of the civil war, then iiendinu', it excited unusual interest 



297 

throUi>-lK)Ut the coutitrv. Its liistory is brie'tly this. In 
March, 1863, tho schooner /. M. Chrpmai) was seized 
in the harhov of San Fi-anciscD \)y \hr Tnited States rev- 
enue ortieers, whih^ saiHni;-, or al)ont to sail, on a. cruise, in 
the service of the Confederate States, against the connnerce 
of the United States, and the leadei's of the expedition, 
named Greatliouse, Harpending, Ruhcry,La.w, and Libby, 
were indicted under the act of Congress of July ITtli, 
1862, for engaging in and giving aid and conil'ort to the 
then existing rebeHion against the government of the 
United States. Tlie case was called for trial at the Octo- 
ber term of 1868. A nolle pro^iciiid was entered as to Law 
and Libl)y, and tliey l)ecame witnesses for the prosecution. 

Their testimon}' and that of others showed that Har- 
pending, a native of Kentucky, and Rul)ery, a native of 
England, had for some time contemplated the titting out 
of a privateer at San Francisco, for the purpose of taking 
several of the mail steamships plying between that port 
and limama, and other vessels. With this object in view, 
Ilarpending had gone across the country to Richmond, 
A'irginia, and procured from Jefferson Davis, the Presi- 
dent of the Ccmfederate States, a letter of marque, au- 
thorizing him to prey upon the commerce of the United 
States, and to burn, board, or take any vessel of their cit- 
izens; and also a letter of instructions directing him how 
to act, and containing the form of a bond, in case any 
prize taken should be bonded. Upon his return to San 
Francisco he and Ruber}'- made arrangements for the pur- 
chase of a vessel which would suit their purpose; but these 
arrangements afterwards fail^ed, on account of the dishonor 
of the drafts drawn for the purchase-money by Rubeiy, 
and the consequent want of funds. They also niade a 
voyage to Cerros Island for the purpose of examining into 
its fitness as a depot and as a rendezvous whence to attack 
the steamers going to Panama. 

In Januar}^ or February, 1863, Ilarpending made the 
acquaintance, at San Francisco, of Law, a ship captain ; 



298 

broached to liini the project of fittinii; out a privateer; 
8tated what had been done; exhibited his letter of marque 
and instructions; sohcited him to enter into the enterprise 
and assist in procuring a vessel; and said, among other 
things, that if he had succeeded in carrying out his pre- 
vious arrangements, he could easily have taken three of 
the mail steamers. Law agreed to take part in the scheme, 
and soon afterwards pointed out the schooner /. M. Chap- 
man, a vessel of about ninety tons burden and a fast sailer, 
as well adapted for the intended cruise. Several meetings 
in reference to the subject took place between Harpend- 
ing, Rubery, Law, and Greathouse, (who had been intro- 
duced 1)y Ilarpending to Law as a capitalist,) and the re- 
sult Avas that Greathouse purchased the schooner, and fur- 
nished money to procure arms, ammunition, and stores, 
and to engage a mate and a crew. The next morning 
Law took charge of the schooner, moved it to a wharf at 
the city front, informed Libby of the project, and induced 
him to go as mate, and engaged four seamen and a cook. 
All tills time Greathouse gave out that he was acting in 
the interest of the " Liberal Party " in Mexico, and under 
this pretext, arms and ammunition were purchased, con- 
sisting of two brass rifled twelve-pounders, shells, fuse, 
powder, muskets, pistols, lead, caps, and knives. These 
were packed in cases marked '^ oil mill " and " ma- 
chinery," and shipped as quietly as possible, and there was 
also shipped a number of uniforms, such as are usually 
w^orn by men on vessels of war. A large amount of lum- 
ber was also purchased and shipped, with whicli to con- 
struct berths, a prison room, and a lower deck. The in- 
tention of the parties was to sail from San Francisco on 
Sunday the 15th of March, 1863, to the island of Guada- 
lupe, which hes some three hundred miles off the coast of 
California; there" land Ilarpending and the flighting men, 
who Averc to be sliipped on the night of Saturday the 14th; 
thence proceed to Manzanillo, and discharge such freight 
as mii;-ht betaken; nu^n return t.. (iuadaliiiH'. and (if tlie 



RclnxMier lor privateoring puri»().sLvs; then imtceL-d apiiii to 
Maii/anillo, wliere the men Avere to be enrolled and their 
names inserted in the letter of marque, a eo]iy of which 
was thereupon to be forwarded to the i;-overinnent ol" tlu; 
Confederate States. It was their plan first to capture a 
steamer bound from San Francisco to Panama, on its arrival 
at Manzanillo, land its passengers, aiid with the steamer 
thus taken capture a second steamer; next to seize a ves- 
sel from San Franciscc^ then engaged in recovering treas- 
ure from the wreck of the steamer Golden Gate; thence 
to go to the Ohincha Islands, and burn vessels there be- 
longing to citizens of the United States, and theiuH- to 
proceed to the China Sea, and finally into the Fiidian 
Ccean. There they expected to join Admiral Senimes of 
the Confederate ISTavy. In pm-suance of tliis plan, and 
to prevent suspicion, the schooner was " put up " for Man- 
ziinillo. A partial cargo was shipped on board, and Law 
cleared at the custom-house for that port, signing and 
swearing to a false manifest. On the night of March 14th, 
in accordance with the scheme arranged, all the partici- 
pants went on board. Fifteen persons, who had been em- 
})loyed by Ilarpending as privateersmen, were placed in 
the hohl in an open space left for them among the cargo, 
directly under the main hatch. The only person absent 
was Law, who remained on shore with the understanding 
that he should be on hand before morning. It afterwards 
a[)peared that he had became intoxicated, and did not get 
down to keep his appointment until after the schooner had 
been seized. 

During the evening, Rubery had heard rumors that the 
vessel was to be overhauled, and as the morning approached 
and Law^ did not appear, he proposed sailing without him. 
At daylight. Law being still absent, Libby cast off the 
lines, and began working the schooner out from the wdiarf 
into the stream. The main-sail was partially hoisted; but 
no sooner had the whai'f been left, than two boats w^ere 
observed [.utting off from the United States sloop-of-war 



300 

Cyane, then lying at anchor in the bay. As they headed 
for the schooner, Libby, pointing at them, said to Great- 
house that they were after them. Rul)ery then insisted on 
running up the sails, but Libby replied that there was no 
wind, and it would be useless. In a few minutes after- 
guards the schooner was boarded and seized by the officers 
of tlie United States, and the enterprise nipped in the 
bud. Scarce]}' had the seizure been effected when Law 
made his appearance on board and was arrested with the 
others. 

The revenue ofiicersof the United States had been aware 
of the intended enterprise from an early period, and main- 
tained a constant watch on the vessel night and day. 

They knew the character of the cargo, which had been 
carefully noted by the watchmen; were aware of the ship- 
ment of arms, and saw the cases with their false marks. 
On the Saturday afternoon when the schooner was cleared 
for Manzanillo, they increased the watch, chartered a steam- 
tug, and put policemen on board. They also made arrange- 
ments for the reception and coniinement of prisone-rs at 
the United States fortifications on Alcatraz Island, and 
procured the two boats with their crews from the war-ship 
Cyane, to act in conjunction witli them on a given signal. 
In the evening, the revenue officers themselves went on 
board the tug, proceeded to a wharf next that at which the 
/. M. Chapmait lay, and watclied the men going on board. 
When the schooner cast off its lines at daylight and headed 
out into the stream, the boats from the Cyane put off and 
l)oarded it according to previous arrangement; and at the 
same time the tug steamed up. Greathouse and Libby 
were on deck; the others were below. Fifteen men were 
found in the hold under the hatch, besides two sailors, who 
had been placed there over night to prevent them from 
leaving the vessel. A search being instituted for papers, 
a number of scraps, some torn, some chewed, and some 
partially burned, were found strewn about the hold. The 
two sailors confined testified that some of the paify had 



mi 

oni[il(iyc'il llie tiiiio iiiterwniiii;- lu'twcou l!u' Koui'diiig of 
llie vessel and the opeiiiiiu' of the liateliway in destroying 
papers. Loaded [)istolsand bowie-knives were found stowed 
away in the interstices between the packages of the cargo. 
In thv' baggage of Harpcnding and Ruhery were found, 
among other papers, a proclamation to the people of Cali- 
iornia to throw otl' the authority of the United States; a 
plan for the capture of the United States forts at San Fran- 
eisuo, and particularly Aleatra/; also, the form of an oath 
of fidelity to their cause, with an imprecation o\' vengeance 
on all who should prove false. It was shown that some 
of these papers were in the handwriting of I Larpending; 
and Rubery admitted that he and one of the defendants 
had spent some time in preparing the oaths. 

After4:lie seizure and arrest, the prisoners were taken 
to Alcatraz and confined. The schooner was uidoaded, 
and the arms and munitions examined. An army olficer 
testified that, in his o})inion, the schooner might have de- 
stroN'cd a I'anama steamer; but naval officers expressed a 
doubt whether this could have been done. 

The defence offered no testimony, but claimed, among 
other things, that a state of war existed between the United 
States and the Confederate States; that the latter were en- 
titled to, and had in fact received from the former, bel- 
ligerent rights; and that privateering on the part of either 
side was a legitimate mode of warfare, and made those 
engaged amenable onl}- to the laws of war. They also 
claimed that the schooner had not started on her voyage, 
l)ut Inid left the wharf with the intention of anchoring in 
the stream and waiting there for the captain and papers; 
that whatever the ultimate intention might have been, 
there had, in fact, been no commencement of the cruise, 
and that, at any rate, no ofience could have been com- 
mitted until the schooner had reached Manzanillo, and 
been ready to commence hostilities. They finally insisted 
that there could be no treason and no conviction under 
the indictment, for the I'eason that ''aid and comfort'' 
liad not been actuaiU u-iven. 



302 

Tlie trial lasted three weeks. Judge Hoffman of the 
District Court sat witli Judge Field, and each of the judges 
gave their views to the jury, following in that respect the 
practice which -was adopted in some of the early State 
cases in the Circuit Courts, at the close of the last cen- 
tury. — (See Wharton's State Trials, Fries' Case, pages 
584 and 587.) 

In his charge Judge Field defined what constituted 
treason under the Constitution of the United States, fol- 
lowing in that respect the definition of Chief Justice Mar- 
shall in Ex-parte BoUnian and Ex-parte Swartwout, (4 
Cranch, 127,) and commented upon and explained the act 
of July, 1862, under which the indictment was found, and 
then proceeded as follows : 

" The existence of the rehellion is a matter of public notoriety, and 
like matters of general and public concern to the whole country, may bo 
taken notice of by judges and juries without that particular proof Avhich 
is re(iuired of the other matters charged. The public notoriety, the pro- 
clamation of the President, and the acts of Congress are sufficient proof 
of the allegation of the indictment in this respect. The same notoriety 
and public documents are also sufficient proof that the rebellion is or- 
ganized and carried on under a pretended government called the Confed- 
erate States of America. 

"As to the treasonable purposes of the defendants there is no conflict 
in the evidence. It is true the principal witnesses of the government 
are, according to their own statements, co-conspirators with the defend- 
ants, and equally involved in guilt with them, if guilt there be in any of 
them. But their testimony, as you have seen, has been corroborated in 
many of its essential details. You are, however, the exclusive judges of 
its credibility. The Court will only say to you that there is no rule of 
law which excludes the testimony of an accomplice, or prevents you from 
giving credence to it, when it has been corroborated in material particu- 
lars. Indeed, gentlemen, I have not been able to perceive from the ar- 
gument of counsel that the truth of the material portions of their testi- 
mony has been seriously controverted. 

" It is not necessary that I should state in detail the evidence pro- 
duced. I do not propose to do so. It is sufficient to refer to its gen- 
eral purport. It is not denied, and will not be denied, that the evidence 
tends to establish that Harpending obtained from the president of the 
so-(!alled Confederate States a letter of marque — a commission to cruise in 
their service on the high seas, in a private armed vessel, and commit hos- 
tilities against the citizens, vessels, and j^roperty of the United States ; 



tliat liis ('()-(lcrcii(l;iiils and otlicrs onlcicd iiilo a (•(iiispiiacy wil li liiiu 
to purchase and lit out. and aim a vessel, au.l ernise under Ihe sai<l letter 
of marque, in Ihe serviee of llie rehellion : tlial in |.ursuance of Ihe con- 
spiracy they purcha.scd the 8ciiooner J. M. ( iiapUKin ; tluil they puicliased 
cannon, shells, iind ammunition, and tlu; means usually re(iuired in en- 
terprises of that kind, and placed them on hoard the vessel ; that they 
employed men for the management of the vessel ; and that, when every- 
thing was in readiness, they started with the vessel from the wharf, with 
the intention to sail from the port of San Francisco on the arrival on 
board of the captain, who was momentarily expected. Gentlemen I do 
not in-opose to say anything to you ui)on the much disputed (luestions 
whether or not the vessel ever did, in fact, sail from thejiort of San Fran- 
cisco, or whether, if she did sail, she started on the hostile exi)edition. 
In the judgment of the Court they are immaterial, if you Iind the facts 
to be what I have said the evidence tends to establish. 

'" When Hiirpending received the letter of mar(j[ue, with the intention 
of using it, if such be the case (and it is stated by one of the witnesses that 
he represented that he went on horseback over the plains expressly to ob- 
tain it), he became leagued with the insurgents — the conspiracy between 
him and the chiefs of the rebellion was complete ; it was a conspiracy to 
commit hostilities on the high seas against the United States, their author- 
ity and laws. If the other defendants united with him to carry out the 
hostile ex"pedition, they, too, became leagued with him and the insurgent 
chiefs in Virginia in the general conspiracy. The subsequent purchasing 
of the vessel, and the guns, and the ammunition, and the emjiloyment of 
the men to manage the vessel, if these acts were done in futherauce of 
the common design, were overt acts of treason. Together, these acts 
(tomplete the essential charge of the indictment. In doing them the de- 
fendants were performing a part in aid of the great rebellion. They were 
giving it aid and comfort.' 

" It is not essential to constitute the giving of aid and comfort that the 
enterprise commenced should be successful and actually render assistance. 
If for example, a vessel fully ecjuipped and armed in the service of the 
rebellion should fail in its attack upon one of our vessels, and be itself 
captured, no assistance would in truth be rendered to the rebellion ; but 
yet in judgment of law, in legal intent, the aid and comfort would be 
given. So if a letter containing important intelligence for the insurgents 
be forwarded, the aid and comfort are given, though the letter be inter- 
cepted on its way. Thus Foster, in his Treatise on Crown Law, says: 
' And the bare sending money or provisions, or sending intelligence to 
rebels or enemies, which in most cases is the most etfectual aid that can 
be given them, will make a man a traitor, though the money Or intelli- 
gence should happen to be intercepted; for the party in sending it did 
all he could ; the treason was complete on his part, though it had not the 
etfect he intended.' 

" Whenever overt acts have been committed w liich, in their natural 
eon.se(iuence if successful, would encourage and advaiu-e the interests of 



804 

the rt'l)cllioii, ill judgment of law aid and cninrnrt are given. Vrhetlier 
aid and comfort are given— the overt acts of treason being established — 
is not left to the balancing of probabilities ; it is a conclusion of law. 

"If the defendants obtained a letter of raarqne from the president of 
tlie so-called Confederate States, the fact does not exempt them from 
prosecution in the tribunals of the country for the acts charged in the 
indictment. The existence of civil war, and the application of the rules 
of war to particular cases, under special circumstances, do not imply the 
renunciation or waiver by the Federal Government of any of its muni- 
cipal rights as sovereign toward the citizens of the seceded States. 

"As matter of policy and humanity, the government of the United 
States has treated the citizens of the so-called Confederate States, taken 
in open hostilities, as prisoners of war, and has thus exempted them from 
trial for violation of its municipal laws. But the Courts have no such 
dispensing power; they can only enforce the laws as they find them upon 
the statute-book. They cannot treat any new government as having au- 
thority to issue commissions or letters of marque which will atford pro- 
tection to its citizens until the legislative and executive departments 
have recognized its existence. The judiciary follows the political de- 
partment of the government in these particulars. By that department 
the rules of war have been applied only in special cases ; and, notwith- 
standing the application, Congress has legislated in numerous instances 
for the punishment of all parties engaged in or rendering assistance in 
any way to the existing rebellion. The law under which the defendants 
are indicted was passed after captives in war had been treated and ex- 
changed as prisoners of war in numerous instances. 

" But even if full belligerent rights had been conceded to the Confed- 
erate States, such rights could not be invoked for the protection of per- 
sons entering within the limits of States which have never seceded, and 
secretly getting up hostile expeditions against our government and its 
authority and laws. The local and temporary allegiance which every 
one — citizen or alien — owes to the government under which he at the 
time lives, is sufficient to subject him to the j)enalties of treason." — (4 
Sawyer, 470-4.) 

The last part of tins charge is undoubtedly correct, for 
whatever protection the concession of belligerent rights 
may have given to persons engaged in actual warfare on 
the Confederate side, none could be allowed to persons in 
league with them, engaged in getting up hostile expeditions 
within the limits of the States which had never seceded. 
Under no aspect of the law of belligerency could they be 
exempted from prosecution. The extent of protection 
which the concession of bellia'erent ri^'hts o-ives to insur- 



805 

gents iigainst :iii oslnldislicd goN'crmiKMil is st;ilc(l liy tlu' 
Sni)i'oine Convt in Williams vs. Hniliy ((I ( )tt<), 1<S7).— 
See al)u\'i', [»age iU. 

Ilajiitily the great Act of Annu-sly iHoinulgatrd Ity 1 'resi- 
dent dolaison on tlie2r)th()r DcccnilxT, 18(i(S, has renioved 
all gi'onnd for legal accusation against parties engaged in 
the great insurrection against the government of the 
United States. — See language of Jiurke cited ahove at 
page 60, and comments upon it. 

The jury found the defendants guilty, and sentence im- 
posing hoth line and imprisonment was pronounced upon 
them. Hubery was subsequently pardoned by President 
Lincoln at the request of dohn Bright of England. The 
other defendants were subsequently released from im- 
prisonment upon taking the oath prescribed in the procla- 
nuition of President Linc.(dn of Decendier 8, 1863, and 
giving a l)ond foi' thcii' future good l)ehavior. 

United States yr. Knowles. 

This case was also one of special interest. It was tried 
in the Circuit Court in 1864. Knowles was the captain of 
the American ship " Charger," and in April of that year 
one of its sailors, by the name of Swainson, whilst on 
the royjd yard engaged in furling sail, accidentally fell 
overl)oard. The captain refused to stop the vessel and 
lower either of its boats — it had three — or to make any 
attempt to rescue the man, and he was drowned. An in- 
dictment was accordingly found against him, alleging that 
the sailor might have l)een saved had the captain stopped 
his ship and lowered either of its boats and made any at- 
tenq)t to rescue him, and that for his negligence and omis- 
sion in this respect the sailor was drowned, and lience 
charging the captain with murder. At the outset of the 
trial the public prosecutor only asked a verdict for man- 
slaughter. 

Judge Field, after stating the nature of the indictment, 
charged the jury as follows: 



30(j 

"As you will thus perceive, gentleman, tlio eliari^e is that the death of 
Swainson was occasioned by the willful omission of the defendant to 
stop the ship, lower tlie boats, and rescue liim, or to make any attempt 
for liis rescue. In the majority of cases where manslaughter is charged, 
the death alleged has resulted from direct violence on the part of the ac- 
cused. Here the death is charged to have been occasioned by the willful 
omission of the defendant to perform a plain duty. 

" There may be, in the omission to do a i)articular act under some cir- 
cumstances, as well as in the commission of an act, such a degree of crim- 
iuality as to render the offender liable to indictment for manslaughter. 
The law on the subject is this : that where death is the direct and imme- 
diate result of the omission of a party to perform a plain duty imposed 
upon him by law or contract, he is guilty of a felonious homicide. There 
are several particulars in this statement of the law to which your atten- 
tion is directed. 

" In the first place, the duty omitted must be a plain duty, by which I 
mean that it must be one that does not admit of any discussion as to its 
obligatory force; one upon which different minds must agree, or will 
generally agree. Where doubt exists as to what conduct should be pur- 
sued in a particular case, and intelligent men differ as to the proper ac- 
tion to be had, the law does not impute guilt to any one, if, from omis- 
sion to adopt one course instead of another, fatal consequences follow to 
others. The law does not enter into any consideration of the reasons 
governing the conduct of men in such cases, to determine whether they 
are culpable or not. 

" In the second place, the duty omitted must be one which the party 
is bound to perform by law or contract, and not one the performance of 
which depends simply upon his humanity, or his sense of justice or pro- 
priety. In the absence of such obligations it is undoubtedly the moral 
duty of every person to extend to others assistance when in danger; to 
throw, for instance, a plank or rope to a drowning man, or make other 
eflbrts for his rescue, and if such efforts should be omitted by any one 
when they could be made without imperiling his own life, he would, liy 
his conduct, draw upon himself the just censure and reproach of good 
men; but this is the only puuishment to Avhich he would be subjected by 
society. 

" In'the third place, the death which follows the duty omitted must be 
the immediate and direct consequence of the omission. There are many 
cases in the reports in which this doctrine of liability for negligence re- 
sulting in death is asserted. In one case a defendant had been employed 
to give signals to railway trains of obstructions on the road. Having, on 
Ofls occasion, neglected to give the proper signal of an obstruction, a col- 
lision followed, causing the death of a passenger. Tiie negligence was 
held to be criminal and the defendant was convicted of manslaughter.^- 
(Regina vs. Pargeter, 3 Cox C. C, 191.) In another case the defendant 
was employed as the ground bailiff of a mine, and as such it was his duty 



••507 

1o cause llic iniiic to he ventilated, liy direetiiiu air-headiniis to he ])laee(l 
Mliere necessary. By his omission to do this in a iiartieuhn- ]iiaee the 
damp in the mine exploded and several iiersons were killed. Tiie delbnd- 
aut wasindicted for manslan}i;hter, and tlie Coiirtr instructed tlu> jury iiiat 
iftliey were satisfied that it was the ordinary and i)lain duty of the pris- 
oner to cause tlie air-headinj.; to he made in the mine, and that a person 
using reasonahle diligence would liave had it done, and tiiat l)y tlie omis- 
sion the death of the deceased occurred, they should tind the i)risoner 
guilty. — (liegina vs. Karmes, 2 Carrington i^ l\irwin, ;!(iH.) in these 
eases you will perceive that the omission which resulted fatally was of a 
l)lain personal duty, and that the accident was the inuncdialc and direct 
(•onsequence of the omission. 

" Now, in the c.ise of a person falling overhoard from a .ship at sea, 
wliether passenger or seaman, when he is not killed hy the fall, there is 
no question as to the duty of the commander. He is hound, both by law 
and by contract, to do everything, consistent with the safety of tlie ship 
and of the pa.ssengers and crew, necessary to rescue the person overboard, 
and lor that purpose to stop the vessel, lower the boats, and throw to him 
such buoys or other articles which can be readily obtained, that may 
serve to support him in the water until he is reached by the boats and 
saved. No matter what delay in the voyage may be occasioned, or what 
expense to the owners may be incurred, nothing will excuse the com- 
mander for any omi.ssiou to take these steps to save the person overboard, 
provided they can be taken with a due regard to the safety of the ship 
and others remaining on board. Subject to this condition, every person 
at sea, whether passenger or seaman, has a right to all reasonable efforts 
of the commander of the vessel for his rescue in case he .should by acci- 
dent tall or be thrown overboard. Any neglect to make such efforts 
would be criminal, and if followed by the loss of the person overboard, 
when by them he might have been s.ived, the commander would be guilty 
of manslaughter, and might be indicted and punished for that offence. 

" In the present case it is nat pretended that any efforts were made by 
the defendant to save Swainson, nor is the .law as to the duty of tlie com- 
mander, and his liability for omitting to perform it under the conditions 
stated, controverted by counsel. The positions taken in the defence of 
lheaccu.sed are: 1. That Swainson was killed by his fall from the yard; 
'J. That if not killed it would have been impossible to save him in the 
existing condition of the sea and weather ; 3. That to have attempted to 
save him would have endangered the safety of the ship and the lives of 
the crew. If, in your judgment, either of these positions is sustained by 
the evidence, the defendant is entitled to an acquittal. 

" The killing of Swainson fr^m his tall is alleged from tlie distance he 
must have lallen, and the absence of any appearance of subsequent mo- 
tion on his part in the water. The distance was one hundred and ten 
feet, as stated by one of the witnesses from actual measurement. An- 
other witness says that Swain.son .struck tlie water on his back or front : 

21 



808 

a third witnoss states that the feet of Swainson struck the water first, 
hut the ])()sition of the body was somewhat inclined. From the noise 
made in falling the mate was of the opinion that Swainson struck the 
channels on the side of the vessel in his fall. You can judge of the prob- 
abilities of the man being alive after a fall of this kind. If you believe 
from the evidence that he was killed by the fall, that is an end of this 
case, and you need not pursue your inquiries further. But more, if you 
have any reasonable doubt, by which I mean a doubt founded upon a 
consideration of all the circumstances and evidence, and not a doubt rest- 
ing upon mere conjectnre or speculation, whether he was killed by the 
lall, you need not go further. The prosecution proceeds upon the ground 
that he was not thus killed, the district attorney relying upon the general 
presumption of the law that a man known to be alive at a particular 
time continues alive until his death is proved, or some event is shown to 
have happened to him which usually, in the experience of men. proves 
fatal. Tlie fall of a person into the sea from a height of one hundred and 
ten feet is not an event which is necessarily fatal. Nor can it be said 
that in the experience of men it is usually so. Its effect depends very 
much, if not entirely, upon the manner in which the party falling strikes 
the water, and the existence of obstacles breaking the force of the fall. 
The fact, therefore, that the fall of Swainson appears in the evidence pre- 
sented by the prosecution, does not change the presumption of the law 
which I have mentioned. The burden still remains upon the defendant 
of showing that the fall was fatal, or of showing such attending circum- 
stances as to create a reasonable doubt whether such was not the foct. 
You will not take the fall itself as conclusive on this point, but will con- 
sider it in connection with the evidence of the manner in which the party 
fell, and particularly of the manner in which he struck the water in 
falling. 

"If you are satisfied that the fall was not immediately fatal, the next 
inquiry will be whether Swainson could have been saved by any reason- 
able efforts of the captain, in the then condition of the sea and weather. 
That the wind was high there .can be no doubt. The vessel was going, 
at the time, at the rate of twelve knots an hour; it had averaged for sev- 
eral hours ten knots an hour. A wind capable of propelling a vessel at 
that speed would in a few hours create a strong sea. To stop the ship, 
change its course, go back to the position where the seaman fell over- 
board, and lower the boats, would have required a good deal of time, ac- 
cording to the testimony of several witnesses. In the meanwhile, the 
man overboard must have drifted a good way from the spot where he fell. 
To these considerations you will add the probable shock and consequent 
exhaustion which Swainson nrust have experienced from tlie iall, even 
supposing that he Avas not immediately killed. 

" It is not sufficient for you to believe that possibly he might have been 
saved. To find the defendant guilty you must come to the conclusion 
that he would, beyond a reasonable doubt, have bet>n saved if proper efforts 



to .save him had hern soasouably made, and tlial liis dcalli was the con- 
sequence orihe del'enthint'.s negligence in tliis icspccl. r,rsi(hs Ihc (on- 
dition of the weather and sea, you must also lake into consich ration (lie 
character of the boats attached to tlie sliiii. Accordin^i to tlie testimony 
of the mate tliey were small and untit I'or a rough sea. 

" During the trial much evidence was offered as to tlu'. character of tlu> 
defendant as a skillful and able officer and as u humane man. The act 
charged is one of gross inhumanity ; it is that of allowing a sailor falling 
overboard wliilst at work upon the shi]), to perish, without an eftbrt to 
save him, when by proper eftbrts, promptly made, he could have been 
saved. If there be any doubt as to the conduct of the defendant, his 
past life and character sliould have some consideration with you. 

" With these views I leave the case with you. It is one of much inter- 
est, but I do not think that, under the instructions given, you will have 
any difficulty in arriving at a just conchisiou."— (4 Sawyer, 518-2:5.) 

Tlie jmy returned a verdict ol' acquittal. 
XTnited States vs. Smiley. 

Tliis was another case wliicli excited much interest at 
the time. It arose as follows : Tlie steamer Golden Gate 
left San Francisco for Panama on the 21st^ July, 1862, 
with two hundred and forty-two passengers and a crew 
of ninety-six persons. At about five o'clock on the after- 
noon of Sunday, July 27th, while running within three 
and a half miles of the Mexican coast, she was dis- 
covered to be on fire. An examination disclosed that 
the fire had originated between one of the galleys and 
the smoke-stack, and it soon became tipparent that it 
was impossible to save her. She was then immediately 
headed for the shore, and half an hour later struck on a 
shelving beach of sand about two hundred and fifty feet 
from the shore, at a point fifteen miles north of the port 
of Manzanillo. The surf, which was breaking heavily, 
soon swung her stern around so that she lay nearly paral- 
lel with the beach when she went to pieces. At eight 
o'clock of that evening all that remained visible were her 
engines, boilers, and wheel frames. Gf the three hundred 

and thirty-eight souls on board only one hundred and 
forty were saved. The treasure which she carried, aniount- 

ii)o- to one million four hundred and fifty thousand d 



It's 



310 

was sunk about forty feet inside of tlie wreck, where in a 
space of sixty feet square upwards of one million two hun- 
dred thousand dollars were subsequently recovered. 

Soon after the loss of the steamer was known, a vessel 
was fitted out l)y the undei-writers to proceed to the 
scene of disaster and recover whatever was possible of 
the treasure. The parties employed soon returned and 
abandoned tlie idea of finding it. Immediately another 
vessel, the " Active," was sent by a party of capitalists, on 
the same errand, but she returned likewise unsuccessful. 
In December, 1862, another party of capitalists started 
anothor vessel, the schooner " William Ireland," fitted 
with pumps and wrecking appliances and accompanied by 
sub-marine divers, under the command of Ireland, one of 
the projectors of the enterprise. The men in this expe- 
dition succeeded in recovering |S00,000. In August, 1863, 
they again returned to the wreck and were successful in 
recovering seventy-six thousand dollars more, when it was 
believed that any further efi'orts to secure any additional 
amount would be unsuccessful. Afterwards, in Septem- 
ber, 1863, Thomas Smiley and others fitted out another 
expedition with a party of divers and a more complete 
equipment of diving and wu-ecking apparatus, and returned 
in January following, having succeeded in recovering 
$303,000. On a second trip they found thirty-three thou- 
sand more ; and with this voyage all eftbrts in that direc- 
tion were closed. The treasure recovered by Smiley and 
others, was carried in wooden boxes, each containing from 
|500 to $44,000, and was stowed in a room near the stern 
of the ship. The locality where the greater part was found 
was about one hundred and fifty feet from the shore of 
Mexico and in from six to nine feet of water. Beneath 
the water was an equal depth of sand under which was a 
hard clay stratum. On this hard pan beneath the water 
and the sand the treasure boxes lay. 

Before commencing his operations. Smiley had obtained 
from the Mexican government fi license to explore for 



the treasure lost. On liis return to San Franeiseo, elaini 
was made liv shippers for the speeie I'eeovered, hut it was 
not «;iven u]), as the parties eouhl not agree as to tlie 
amount wliieh the reeovering company should retain as 
compensation for the recovery. The result was that ii 
complaint was made against Smiley and others of his com- 
pany, and in March, 1864, they Avere indicted in the Cir- 
cuit Coui't of the Uiiited States for plundering and 
stealing the treasure from tlie (Jolden (Jafe, under the 
ninth section of tlie act of C'ongi'ess of March 3d, 1825, 
which pi'ovides: "That, if any person or persons shall 
plunder, steal, or destroy any money, goods, merchandise, 
or other effects, from or belonging to any ship, or vessel, 
or boat, or raft, which shall be in distress, or which shall 
be wrecked, lost, stranded, or cast away upon the sea, or 
upon any reef, shoal, bank, or rocks of tlie sea, or in any 
other place within the admiralty and maritime jurisdiction 

of the United States," [he] " shall be deemed guilty 

of felony, and shall, on conviction thereof, be punished l)y 
tine, not exceeding five thousand dollars, and imprison- 
ment and confinement to hard labor not exceeding ten 
years, according to the aggravation of the offence," * 

To the indictment a demurrer was interposed on various 
technical grounds. As the expedition conducted by Smiley 
was an o[»en one, after all other elibrts for the recov- 
ery of the treasure had been abandoned, and Smiley was 
a man of previously g(x)d character and standing in the 
community, the indictment was generall}' regarded as })er- 
secution — as an attempt to coerce the treasure from him 
without allowing proper compensation to him and his as- 
sociates for its recovery. The counsel engaged in the ctuse 
appeared to recognize this. It was, therefore, agreed that 
the facts stated above should be deemed admitted, and that 
upon them the following questions should be presented 
to the Court for determination: 1st, Whether the act of 
Congress applied to a case where the taking of the prop- 

* 4 Stat, at Large, p. 116. 



:]12 

erty, of wLicli larceny was alleged, was after the vessel 
had gone to pieces and disappeared; and, 2d, Whether, if 
the act covered such a case, the Circuit Court had juris- 
diction to try the offence charged, it having been com- 
mitted within a marine league of the shore of Mexico; 
with a stipulation that if the Court should be of opinion 
that the act did not apply to the case, or that it had not 
jurisdiction to try the otFence charged, the demurrer should 
. be sustained. Upon this stipulation the questions were 
argued. In disposing of them tlie Court said, speaking 
through Judge Field: 

" We iire not prepared to decide tliat the statute does not apply to a 
case where the vessel has gone to pieces, to which the goods belonged of 
which larceny is alleged. It would fail of one of its objects if it did not 
extend to goods, which the officers and men of a stranded or wrecked ves- 
sel had succeeded in getting ashore, so long as a claim is made by them 
to the property, though before its removal the vessel may have been 
broken up. We are inclined to the conclusion that, until the goods are 
removed from the place where landed, or thrown ashore, from the stranded 
or wrecked vessel, or cease to be under the charge of the officers or other 
parties interested, the act would apply if a larceny of them were committed, 
even though the vessel may in the meantime have gone entirely to pieces 
and disappeared from the sea. But in this case the treasure taken had 
ceased to be under the charge of the officers of the ' Golden Gate,' or of 
its underwriters, when the expedition of Smiley was fitted out, and all 
efforts to recover the property had been given up by them. The treas- 
ure was then in the situation of derelict or abandoned property, which 
could be acquired by any one who might have the energy and euterprise 
to seek its recovery. In our judgment the act was no more intended to 
reach cases where property thus abandoned is recovered, than it does to 
reach property voluntarily thrown into the sea, and afterwards fished 
from its depths, 

" But if the act covered a case where the property was recovered after 
its abandonment by the officers of the vessel and others interested in it, 
we are clear that the Circuit Court has not jurisdiction of the offiince 
here charged. The treasure recovered was buried in the sand several feet 
under the water, and was within one hundred and fifty feet from the 
shore of Mexico. The jurisdiction of that country over all offences com- 
mitted within a marine league of its shore, not on a vessel of another 
nation, was complete and exclusive. 

" Wheaton, in his treatise on International Law, after observing that 
' the maritime territory of every Rtate extends to the ports, harbors, bays, 
and mouths of rivers and adjacent parts of the sea inclosed by headlands. 



bolon^iiig to the same State,' says: ' Tlie jiciieral UKage of nations 
siilKMiidds to this extent of territorial jurisdicl ion a distance of a marine 
ieajiue, or as far as a caTinon-shot will reach from the, shore, along all the 
coasts of the State. Within these limits its rights of juoijerty and terri- 
torial jurisdiction are absolute, and exchuh; those of every other nation.' 
—(Part 2, Chap. 4, Section 6.) 

"Thecriminal jurisdiction of the government oftlie I'niled States — that 
is, its jurisdiction to try parties for offences committed against its laws- 
may in some instances extend to its citizens everywhere. Thus, it may 
])unish for violation of treaty stipulations by its citizens abroad — for of- 
fences committed in foreign countries where, by treaty, jurisdiction is 
conceded for that purpose, as in some cases in China and in the Kar- 
bary States ; it may provide for offences committed on deserted islands, 
and on an uninhabited coast, by the officers and seamen of vessels sailing 
lUKhM- its flag. It may also punish derelictions of duty by its ministers, 
consuls, and other representatives abroad. But in all such cases it will be 
found that the law of Congress indicates clearly the ex-territorial character 
of the act at which punishment is aimed. Except in cases like these, the 
criminal jurisdiction of the United States is necessarily limited to their 
own t ('rritory, actual or constructive. Their actual territory is co-extensive 
with tiieir possessions, including a marine league from their shores into the 
sea. 

"This limitation of a marine blague was adopted becau.se it was for- 
merly supposed that a cannon-shot would only reach to that extent. It 
is essential that the absolute domain of a country should extend into the 
sea so far as necessary for the protection of its inhabitants against injury 
from combating belligerents while the country itself is neutral. Since 
the great improvement of modern times in ordnance, the distance of a 
marine league, which is a little short of three English miles, may, per- 
iiaps, have to be extended so as to eijual the reach of the projecting power 
of modern artillery. The constructive territory of the United States em- 
braces vessels sailing under their flag; wherever they go they carry the 
laws of their country, and for a violation of them their officers and men 
may be subjected to puni.shment. But when a vessel is destroyed and goes 
to the bottom, the jurisdiction of the country over it necessarily ends 
as much so as it would over an island which should sink into the sea. 

" In this case it appears that the 'Golden Gate' was broken up ; not a 
vestige of the vessel remained. Whatever was afterwards done with ref- 
erence to property once on board of her, which had disappeared under 
tile sea, was done out of the jurisdiction of the United States as com- 
]>lptely as though the steamer had never existed. 

" We are of opinion, therefore, that the Circuit Court has no jurisdic- 
tion to try the offence charged, even if, under the facts admitted by the 
parties, any offence was committed. According to the stipulation, judg- 
ment sustaining the demurrer will be, therefore, entered and the de- 
fendants discharged." 



814 

EX'PARTE CavANAUGH ON HaBEAS CoRPUS. 

In this case the petitioner^ James C. Cavanangh, was 
brought before the Circuit Court, in the summer of 1864, 
on a writ of habeas corpus^ alleging in his petition the un- 
lawful restraint of his lil^erty by an officer claiming to be 
a deputy marshal of the Consular Court at Nagasaki, in 
Japan, and pra^dng for his discharge. It appeared that 
the petitioner had been convicted in that Court, in Sep- 
tember of the previous year,— the consul sitting with four 
assessors,— of the crime of manslaughter in an aggravated 
degree, and sentenced to five years' imprisonment, at hard 
labor, in the jail at that port, and that the sentence had 
been approved by the resident minister in Japan. Upon 
the request of the petitioner, his sentence was changed to 
confinement in the State prison of California, there being 
no provision made by Congress for a jail at the port of 
N^agasaki. He was accordingly brought to San Francisco, 
and there he applied for his discharge. 

Two points were made before the Court: 1st. That the 
legislation of Congress carrying out the provisions of the 
treaty with Japan, by which the Consular Court was au- 
thorized to try citizens of the United States charged with 
the commission of crimes in that empire, was unconstitu- 
tional; and, 2d, if constitutional, that there was no pro- 
vision of law authorizing the confinement of prisoners, 
sentenced by that Court, in the penitentiary of California, 
or their detention by the marshal of the United States for 
that district. 

The Court held that the legislation of Congress was con- 
stitutional, but discharged the prisoner on the second ground. 
Its opinion has not been reported. It placed the validity 
of the legislation upon the treaty clause of the Constitu- 
tion, holding that that clause authorized treaties upon all 
subjects of foreign commerce and for the protection of 
persons engaged in it, and, if necessary, to prevent citizens 
of the United States, charged with offences, from being 



^15 

sulijcctcd to (he (MMK'I and l)arlt:inMis |>uiiisliineiit of Asiatic 
and otluTllian Christian conntrii'S, the treaties mi-;lit stip- 
nlate lor a special tribunal for their triah It lollowed 
suhstanlially the reasons contained in the letter to Mr. 
Calhoun, then Secretary of State, (»f Septend.cr, 1S44, by 
Mr. Caleh Cushini!,-, the minister who made our treaty 
with China, under wliieli C(»ni;-ress passed (he law author- 
izing;- similar Consular Courts in that empire. 

IIaudv vs. IIaubix. 

This case was before the Court in July, 18(1'). It was a 
suit in equity to charg-e the defendants- — as trustees of cer- 
tain real property, situated in Yolo County, C-alifornia — 
and to compel a transfer of the title to the complainaids, 
and arose out of facts of a very unusual character. They 
were brieily these: 

(Tne John Hardy was a native of Canada, and in 1824 
Avas married in that province. Three children wei'e the 
issue of this marriage, two of whom, Alexander and El- 
len, were living when the suit was l)rought. Alexander 
was born in Xew York, and during the civil war was a sol- 
dier in the United States Army. John Hardy's wife died 
in 183-, and soon afterwards he left Canada, and for one 
01' two years was employed at dillerent places on the Mis- 
sissip[)i River. He then proceeded to Texas and thence to 
Mexico. There he l)ecame a Mexican citizen l)y natural- 
ization, and for a while was engaged in the military ser- 
vice of the country. In 1843 he went to California and 
tjiere assumed the name of Thomas Hardy, by which name, 
or that of Thomas M. Hardy, he was always known in 
that country. In October of that year he obtained from 
the government of the Department of California, in his 
assumed name of Thomas Hardy, a grant of land to the 
extent of six square leagues, in the present county of Yolo, 
In Octol)er, 1848, he died at Benicia, intestate, possessed 
of the real property thus granted to him, and also personal 
property of the value of several thousand dollai's. lu 



316 

March, 1850, tlie Prefect of the District of Sonoma, wliicli 
embraces Benicia, appointed one Stephen Cooper, of that 
phace, administrator of the estate, and issued letters of 
administration to him, and he took possession of the prop- 
erty. In 1851 the Prefect — his office having been abol- 
ished, and Probate Courts having been established in the 
several counties of the State — transferred the papers to the 
Probate Court of Solano County. By order of that Coui-t 
the real property was sold and the sale confirmed. In 
1852 the claim of the purchasers of the land at that sale, 
and of parties deriving title from them, was presented for 
confirmation to the Board of Land Commissioners, created 
by act of Congress of March 3d, 1851, for the settlement 
of private land claims in California derived from Mexico. 
This claim was confirmed by the Board and afterwards by 
the United States District Court, and in July, 1858, a pat- 
ent of the United States was issued to the claimants. 

During all this time the two surviving cliildren of John 
Hardy liad lieard nothing of their father cxce}it l)y a letter 
iVom him dated at Monterey, in Caliiornia, in 1817 or 
1848. But sometime about 1860, rumors reached them — 
one, the daughter, being in Canada, and the other, the son, 
being in 'New York — that their father had resided in Cal- 
ifornia, acquired large property there, and had died intes- 
tate, and that others were claiming the property. Inquiries 
set on foot by them satisfied them of the truth of the ru- 
mors and this suit was finally In'ought bj^ them to recover 
the property. 

The facts here narrated were set forth in their bill of 
complaint, to which tlie defendants demurred on the al- 
leged ground of want of equity, and that the claim of the 
complainants was a stale one, and barred by the statute of 
limitations of the State. The Court overruled, the de- 
murrer and required the defendants to answer the bill. 

In deciding the case Judge Field said, as follows: 

" The ground upon which the bill proceeds is that the defendants have 
obtained the legal title to property, of which the father of the complain- 
ants died possessed, and which the complainants inherited ; that the de- 



317 

I'fiuiuiit.s look the li'gal title with uoticu of tlio iiivali(.lit.>- .oi' tlie means 
))y which it was obtaiued, and should, therefore, upon obvious principles 
of justice, be required to give it up to the true owners. The bill is filed 
for the purpose of having a trust declared and enforced, the complainants 
relying- upon the established doctrine that whenever proi>erty is acquired 
by fraud, or under such circumstances as to render it ineciuitable for the 
holder of the legal title to retain it, a Court of Equity will convert him 
into a trustee of the party actually entitled to its beneficial enjoyment. 
And the bill presents a clear case for the application of this doctrine. 
The Prefect of Sonoma had no jurisdiction over the estate of the de- 
ceased, nor any authority to appoint an administrator. Prefects were 
executive officers of the government. It was their duty to maintain pub- 
lic order and tranquillity, to publish and enforce the laws, and to exer- 
cise a general supervision over the subordinate officers and the public in- 
terests of their districts. They were empowered to impose small tines in 
the enforcement of their authority, and to hear complaints against inferior 
otiicers of the district, but bcyoud this extent they were not clothed Avith 
any judicial functions. 

"Nor did the Probate Court of Solano County acquire any jurisdiction 
over the estate of the deceased after the transfer of the papers from the 
I'refect. The statute of California for the settlement of the estates of 
deceased persons has no application to the estates of parties who died 
previous to the organization of the State government. This was ex- 
pressly held by the Supreme Court of California in Grimes' Estate vs. 
Norris, with reference to the probate of a will executed in 1848 (6 Cal., 
621) ; and the ruling in this respect was affirmed by the same Court in 
the subsequent case of Tevis vs. Pitcher. — (10 Cal., 465.) The act which 
provides for the probate of wills also regulates the manner in which the 
estates of parties dying intestate shall be closed, and is equally limited 
in its application to cases arising subsequent to the adoption of the con- 
stitution. It was obviously the intention of the Legislature to leave all 
estates of decedents who died previously to be settled under the law as 
it then existed ; and such is the ruling in a recent case of the Supreme 
Court of the State. — (Downer vs. Smith, 24 Cal., 114.) 

" It was, therefore, under color of legal proceedings, every step of which 
Avas a nullity, that the conveyance of the alleged administrator was exe- 
cuted. That conveyance enabled the purchasers, and parties holding un- 
der them, to present the grant made to Hardy by the Mexican govern- 
ment to the Board of Land Commissioners, and to obtain a confirmation 
of the claim asserted by them to the land it embraces, and ultimately the 
patent of the United States. Thus, by means of an instrument purport- 
ing to transfer the interest of which Hardy died i>ossessed, but in fact 
transferring nothing, they obtained a standing before the federal- tribu- 
nals, and have secured to themselves the legal title from the government 
of the United States. It is the possession of this legal title, as shown 
by the confirmation and patent, which precludes the complainants, who 



•318 

are the sole surviving heirs of the deceased, iVom instituting or maintain- 
iug ejectment for the premises, and forces them to seek relief from a 
Court of Equity. And it is upon the confirmation and patent that the 
defendants rely to resist the claim of the complainants. Their position 
is that the confirmation enured to the benefit of the confirmees, and that 
the patent is conclusive evidence of the validity of their title ; that it is 
the record of the government upon it, which cannot be questioned ex- 
cept in direct proceedings instituted in the name of the government or 
by its authority. 

" It is undoubtedly true that the confirmation enured to the benefit of 
the confirmees, so far as the legal title to the premises was concerned. It 
established the legal title in them, but it determined nothing as to the 
equitable relations between them and third parties. The object of the 
government in the passage of the act of March 3d, 1851, was to separate 
the public lands from those which were private property, and to discharge 
its treaty obligations by protecting private claims. The only question 
in which the government was concerned, and which demanded its con- 
sideration, was what interests in land had the former sovereignty parted 
with, not what had transpired between private parties subsequent to the 
action of that sovereignty. And in conformity with this view is the lan- 
guage of the Supreme Court of the United States in Castro vs. Hendricks. 
— (23 How., 412.) After stating that to accomplish the purposes of the 
act of March 3, 1851, every person claiming lands in California by virtue 
of any title or right derived from the Spanish or Mexican governments, 
was required to present the same to a Board of Commissioners, the Court 
said : ' The mesne conveyances were also required, but not for any aim of 
submitting their operation and validity to the Board, but simply to enable 
the Board to determine if there was a bona fide clahnaut before it under a 
Mexican grant; and so this Court have repeatedlj' determined that the 
government had no interest in the contests between persons claiming ex 
post facto the grant.' And the Supreme Court of California, whilst de- 
claring that the confirmation enured to the benefit of the confirmee, has 
in frequent instances qualified the declaration by stating that equities 
between the confirmees and third parties remained unaffected. Thus, in 
Estrada vs. Murphy (19 Cal., 272), the Court said : ' If the confirmee, 
in presenting his claim, acted as agent, or trustee, or guardian, or in any 
other fiduciary capacity, a Court of Equity, ujion a proi^er proceeding, 
will compel a transfer of the legal title to the principal, cestui que trust, 
ward, or other party equitably entitled to the same, or subject it to the 
proper trusts in the confirmee's hands. It matters not whether the pre- 
sentation was made by the confirmee in his own name in good faith, or 
with intent to defraud the actual owner of the claim, a Court of Equity 
will control the legal title in his hands so as to protect the just rights of 
others.' 

" The patent is undoubtedly a record of the government upon the title 
of the claimant. Before it is issued numerous proceedings are required 



810 

to be tiikcii hcfoiv tlic trihiuials and olliccrs of the United Stales, liaving 
tor tlieir object the ascertainment of the validity of tlie <i;raiil. i)rcferred 
under Mexican hiw and authorities, and the identification of liic land to 
which it is or should be restricted. As the last act in the series of i)ro- 
ceedings, and as a result of those previously taken, it is issued. It is, 
therefore, record evidence on the part of the government that the pre- 
vious grant was genuine, and entitled to recognition and contirmation by 
the law of nations, or the stipulations of the treaty between Mexico and 
the United States, and is correctly located so as to embrace the premises 
described. Until vacated and set aside by proceedings instituted in the 
name, or by the authority of the government, it is evidence that the title 
had passed by the grant from the former government, or that such equi- 
ties had existed under that government in favor of the alleged grantee, 
as to require or justify the cession of the title, and also that by convey- 
ances, regular on their face, the legal title had apparently passed from 
the grantee to the claimant; but it is not evidence of any equitable rela- 
tions of the holders of subsequent conveyances from the grantees to 
each other or to third parties, for such relations were not submitted to 
the tribunals of the United States for adjudication in the settlement of 
private land claims under Spanish and Mexican grants. 

" There is nothing in the numerous decisions of the Supreme Court of 
the State upon patents of the United States which militates against this 
view. Those decisions, with one or two exceptions, were rendered in ac- 
tions of ejectment, and only affirmed the conclusiveness of the patents in 
determining the title of the patentees in such actions, as against attempts 
to resist their operation by parties holding either under uncontirmed 
grants, or by alleged pre-emption and settlement under the laws of the 
United States. It is true, it is said in Stark vs. Barret (15 Cal., 316), that 
the patent, in recognizing the validity of the grant, upon the contirmation 
of which it is issued, necessarily establishes the validity of all properly ex- 
ecuted intermediate transfers of the grantee's interest, but this is no 
more than saying that if the grant was valid, a valid title was transferred 
by properly execnted conveyances of the grantee — a proposition which 
requires no explanation. And the decision in Clark vs. I^ockwood (20 
Cal., 220), to which counsel refer, only goes to the extent of declaring 
that in an action of ejectment by the vendee of the confirmee, it is un- 
necessary to introduce the intermediate conveyances from the Mexican 
grantee to the confirmee, the confirmation being an adjudication that the 
legal title was in him at the date of the presentation of his petition to 
the Land Commissioners. The opinion of the Court expressly limits the 
conclusiveness of the adjudication to the legal title in that action, and 
cites from the case of Estrada vs. Murphy to show that equities against 
sucli titles may be enforced by proper proceedings in a Court of Equity. 

"The action of ejectment deals with legal titles; the patent determines 
the position of such title, and when the patentee is other than the Mexi- 
can grantee, it is evidence that he had made such a prima facie showing 



320 

before the proper antliorities of liavinjia Ininsl'cr oCtho grantee's interest, 
as to justify its having been issued to him. In the opinions filed on ren- 
dering the decisions in the State Courts cited by counsel, though relating 
to the legal title, reference is made in several instances to possible equi- 
ties of third parties, for the purpose of qualifying the general language 
used as to the conclusive effect of the patents, and to direct parties assert- 
ing such equities to the proper tribunal for relief." 

Tlie Judge then referred to the cases of Brnsli vs. Ware 
(15 Peters,^ 93), Reeder vs. Barr (4 Oliio, 458), and pro- 
ceeded as follows : 

" The princii)le upon which these decisions proceed is the fanailiar one, 
that where a purchaser cannot make out his title except through an in- 
strument which leads to a jiarticular fact, he is chargeable with notice of 
such fact. 

" In the case at bar the principle applies and is a full answer to those 
of the defendants who took their title from the patentees. The patent, 
we must presume, was issued in the ordinary form of such instruments 
upon the confirmation of a Mexican grant, with a recital of the existence 
of the grant, the conveyance of the grantee's interest by the admiiiistrator, 
the confirmation of the claim under the grant, its survey upon the con- 
firmation, and the approval of the survey by the proper officers of the 
government. Such are the usual recitals, and, of course, in the present 
case they directed the attention of all subsequent purchasers to the ex- 
amination of the conveyance of the administrator, and the proceedings 
upon which it was made. 

"The position that the complainants are not entitled to relief because 
by the act of March 3, 1851, all lands, the claim to which was not present- 
ed within two years thereafter, were to be deemed part of the public do- 
main, hardly merits serious consideration. It cannot be affirmed that if 
the sale by the administrator had not taken place, friends of the deceased 
would not have made efforts to ascertain whether there were any heirs to 
the estate, and have not succeeded in finding them ; nor that the property 
would not have V)een taken in charge by officers of the State as a vacant 
inheritance, and the grant presented for adjudication to the proper tri- 
bunals of the United States ; nor that relief might not have been afforded 
the heirs when the property was discovered by appropriate legislation. 
The finder of personal property might with equal propriety justify its 
retention on the ground that the true owner would never have found it. 

" The claim presented by the claimants, resting upon solid principles 
of justice and right, must be sustained, upon the showing of the bill, un- 
less barred by the statute of limitations. 

" The statute of limitations of this State is peculiar. It differs essen- 
tially from the English statute, and from the statute of limitations in 
force in most of the other States of the Union. Those statutes, in 
terms, ai^ply only to particular legal remedies, and Courts of Equity 



321 

are said to l)c bound )iy tliriii only in cases of coiKnirrculJiiiisdicdoii, 
and in other oases to act only by analojiy to the statntcs, and not in 
obedience to them. But in this State the statute applies iHitii ti> c(iuitM- 
ble and to legal remedies. It is directed to the subject-matter, and not 
to the form of the action or the tribunal before which it is jirosecuted. 
Such is the language of the Supreme Court, the only authoritative inter- 
preter of the laws of the State. — (Lord vs. Morris, 18 Cal., 486.) 

" The question then is, whether the statute barred the relief jiraycd, 
and not whether, as insisted by counsel, the claim on general principles 
adopted in the administration of equity is a stale claim, although we 
may add on this latter head that the claim has upon such principles no 
feature that should bar its enforcement on that ground. The statute 
provides that certain actions shall be brought within three years after 
the cause of action shall have accrued, but declares that in action for re- 
lief on the ground of fraud, the cause of action 'shall not be deemed to 
have accrued until tlie di.scovery by the aggrieved party of the facts con- 
stituting the fraud.' This exception covers the case at bar. The pat- 
entees secured to themselves the legal title by the presentation to the 
Board of Land Commissioners of a worthless document as a transfer of 
the grantee's interest, and they prosecuted a claim under this document 
for years. By these proceedings a fraud was committed upon the heirs of 
Hardy, and not until its discovery did the statute commence running 
against their rights. The bill avers such discovery within the years pre- 
scribed. And the defendants who took title under the patentees are charge- 
able with notice of the character of the claim under which the patentees 
secured the title, and, consequently, are precluded from protection as in- 
nocent purchasers. They are, therefore, chargeable with constructive 
fraud in taking title from the patentees, however ignorant in fact of the 
rights of the heirs, and however honest in their intentions they may have 
been. 'Another class of constructive frauds,' says Mr. Justice Story, after 
enumerating several clas.ses, ' consists of those where a person jjurchases 
with full notice of the legal or equitable title of other persons to the 
same property. In such cases he will not be permitted to protect him- 
.self against such claims; but his own title will be postponed and made 
subservient to theirs.' " 

This case is reported in 4th Sawyer, .53(J. Its doctrine 
was afhrnted in Norton vs. Meader, Fhid., 604. 

Hall vs. LTnger. 

California passed under tlie jurisdiction of the United 
States on the 7th of July, 184G; at least at that date the 
forces of the United States took possession of Monterey^ 
tlie Capital of the Department, and from it the authority 



of MoxiciUi oiiicials over the conntiy is rcicardod l\y the 
[>olitical (iepartment of the o-overninent, as liaviiig ceased. 
In that respect the judiciary follows the action of the politi- 
cal department. — (United States vs. Yorba, 1 Wall., 423.) 
At that time there was a Mexican pueblo at the site of 
the present city of San Francisco. This term, " pueblo," 
has all the vagueness of signification of the English word 
'' town," and is applied indiscriminately to a mere collec- 
tion of individuals residing at a particular place, a settle- 
ment, a village, and also to a regularly organized munici- 
pality. The pueblo at San Francisco, was a small settle- 
ment, though it was of sufficient importance, as early as 
1835, to have a Council [Ayuntamiento] , composed of 
alcaldes and other officers, for its government. When 
our forces took possession of the town, citizens of the 
United States were appointed, by the military and naval 
commanders, to act as alcaldes in place of the Mexican of- 
ficers. 

Under the laws of Mexico, a pueblo — or town — when 
once recognized as such by public authority, became en- 
titled to the use of four square leagues of land, end)racing 
its site and adjoining country. San Francisco, as a pueblo, 
asserted a claim to such lands. The Mexican alcaldes were 
authorized to distribute these lands in small tracts to the 
inliabitants of the town for building, cultivation, or other 
uses, the remainder being reserved for commons or other 
public purposes. Tlie American alcaldes, appointed by 
our military or naval commanders, at once asserted a right 
■ to exercise this power of distribution, and as a consequence 
they had numerous applications for grants, some of which 
were from officers of the army and navy. 

In December, 1848, John Hail, a lieutenant in the navy, 
received from Alcalde Leavenworth a grant of a hundred- 
vara lot, that is, a lot two hundred and seventy-five feet 
square. Whatever title the city, or the State, or the United 
States may have possessed to the land, was aiterwards re- 
linquished by city, state, and congressional legislation. 



ITis title, tluM'cforo, if not so :it the tiiiio. sn1)s(Miii('iitly l>c'- 
caiiK' porfoct. 

In 1849 Hall became nn\v(;ll, and his health was so much 
affected that he was sent from California, to the Eastern 
States in the charge of a physician. He arrived in New 
York and Joined his family in dune, 1849, and remained 
with them until June, 1851. Durinii- this period tliere 
were such indications of insanity that, f>y the advice 
of his |»liysieian and consent of his family, he was sent to 
the asylum at Frankford. There ho. remained under treat- 
ment f )r insanity until January, 1854, when he was re- 
moved to the State insane asylum, where he died in Sep- 
tember, 1860. 

On the 27th of December, 1852, whilst he was in the 
asylum at Frardxford, he signed a power of attorney to one 
James W. Harris, empowering him to sell and convey the 
lot in San Francisco, and also to appoint a substitute to 
act for him. This power bore a certificate of due acknowl- 
edgment before a commissioner of California, resident in 
Pennsylvania. The attorney mentioned a})pointed one 
Havid B. Rising as his substitute, and he, as such sub- 
stituted attorney, executed a conveyance to parties who 
entered into possession of the premises. Against them the 
widow and heirs of the deceased Hall brought ejectment 
for the property, contending that, at the time the power of 
attorney purported to have been executed, Hall was in- 
sane, and incapable, by reason of liis insanity, of attend- 
ing to any business. 

The case was tried at the (^ctol)er term of ]8<)7, with a 
jury, whom Judge Field charged, as follows: 

" Gentlemen, I do not propose to attempt any nice or pliilosophical 
exposition of the subject of insanity. I sliould certainly fail if I made 
the attempt; and if I could succeed, the result wouhl not he of any ser- 
vice to you in determining this case. Any elaborate and extended dis- 
sertation, if it were possible for me to present such a one, would only 
tend to perplex and confuse your minds. I shall make a few plain ob- 
servations on this subject, and refer to the rules laid down by the au- 
thorities to guide you in- considering it, and then call your attention 
briefly to the evidence jn the ease. 



324 

"The physiciuns who have been examined, and the text-writers, 
declare that it is impossible to give any consistent detinition of insanity ; 
that no words can comprise the different forms and characters which this 
malady may assume. The most common forms, in which it presents 
itself, are those of mania, monomania, and dementia. All these imply 
a derangement of the faculties of the mind from their normal or natu- 
ral condition. Idiocy, which is usually classed under the general des- 
ignation of insanit}^ is more properly the absence of mind than the 
derangement of its faculties ; it is congenital, that is, existing at birth, 
and consists not in the loss or derangement of the mental powers, but in 
the destitution of powers never possessed. 

" Mania is that form of ii*sanity where the mental derangement is 
accompanied with more or less of excitement. Sometimes the excite- 
ment amounts to a fury. The individual in such cases is subject to hal- 
lucinations and illusions. He is impressed with the reality of events 
which have never occurred, and of things which do not exist, and acts 
more or less in conformity with his belief in these particulars. The 
mania may be general and affect all or most of the operations of the 
mind; or it may be partial, and be confined to particular subjects. In 
the latter case it is generally termed monomania. 

" Dementia is that form of insanity where the mental derangement is 
accompanied with a general enfeeblement of the faculties. It is charac- 
terized by forgetfulness, inability to follow any train of thought, and 
indifference to passing events. ' In dementia,' says Ray, a celebrated 
writer on medical jurisprudence, 'the mind is susceptible of only feeble 
and transitory impressions, and manifests but little reflection even upon 
these. They come and go without leaving any trace of their presence 
behind them. The attention is incapable of more than a momentary 
effort, one idea succeeding another with but little connection or cohe- 
rence. The mind has lost the power of comparison, and abstract ideas 
are utterly beyond its grasp. The memory is peculiarly weak ; events 
the most recent and most nearly connected with the individual being 
rapidly forgotten. The language of the demented is not only incohe- 
rent, but they are much inclined to repeat isolated words and phrases 
without the slightest meaning.' 

" These common forms of insanity — mania, monomania, and dementia — 
present themselves in an infinite variety of ways, seldom exhibiting 
themselves in any two cases exactly in the same manner. Mania some- 
times affects, as already observed, all the operations of the mind ; and 
sometimes the mental derangement appears to be limited to particular 
subjects. An absence of reason on one matter, indeed on many matters, 
may exist, and at the same time the patient may exhibit a high degree 
of intelligence and wisdom on other matters. The books are full of such 
cases. Many of them have been cited to you by counsel on the argu- 
ment. They show, indeed, a want of entire soundness of mind ; they 
show partial insanity, but this does not necessarily unfit the individuals 



afrcctcd I'or tlic trans ictiou ol' Imsincss on all snlijccts. in a case which 
arose in tlic PriTo.iiativc Conrt ol" laitiland (Dew vs. Clark, :> Aiklams 
Va-v\. K., 7!)i. it was Slid hy connsfl that iiaitial insanity was soniothinf? 
unknown to tin- Liw of En,ij,laiul. To this suirucstion tlie Conrt r(>j)lied: 
' If he mraut, by this tliat the law of iaiiiland never deems a jjorson both 
sane and insane at the same time upon one and the sanu'^ snbjeet, the 
assertion is a mere truism. But if by tluit position lie meant and in- 
tended that the law of England never deems a party both sane and 
in-iane at dififereiit times on the same subject, and both sane and insane 
at the same time on diiYerent subj-.-ets, tliere can seareely be a i)osition 
nujre destitute of legal foundation, or ratlier tiiere can seareely be one 
more adverse to the current of legal autliority.' In that case the Conrt 
cited the language of Locke, that 'anian who is very sober and of a 
right understanding in all other things, may, in one particulai', be as 
frantic as any man in Bedlam ;' and of Lord Hale, who says, ' There is a 
partial in.sanity of mind and a total insanity ; iu the first, as it respects 
particular things or persons, or in respect of degrees, which is the condi- 
tion with very many, especially melancholy persons, who for the most 
part discover their defect in excessive fears and grief, and yet are not 
wholly destitute of the use of reason.' 

"So. too. in dementia, where there is a general enfei'blement of the 
mental powers, there is not usually equal weakness exhibited on all .sub- 
jects, nor in all the faculties. Those matters which, previous to the exist- 
ence of the malady, the patient frequently thought of and turned over 
in his mind, are generally retained with greater clearness than less fam- 
iliar objects. One faculty may be greatly impaired — the memory, for ex- 
ample — while other faculties retain some portion of their original vigor. 
The disea-se is of all degrees from .slight weakness to absolute lo.ss of rea- 
son. The enfeeblement usually progresses gradually — through a twilight, 
as it were, of reason, before the darkness of night settles upon the mind. 

•■ It is important to bear these observations in mind, for it does not fol- 
low from the fact that mania or dementia be shown, that there may not 
be reason or capacity for business on some subjects. In determining the 
ability of the alleged insane person to execute any particular act, the in- 
(|uiry should first be, what "degree of mental capacity is essential to the 
])roper execution of the act in question ; and then whether such capacity 
was possessed at the time by the party. It is e\ident that a very differ- 
ent degree of capacity is required for the execution of a complicated con- 
tract, and a single transaction of a simple character, like the purchase or 
sale of a lot. 

'■ The act done in the case at bar was the execution of a power of attor- 
ney to sell three lots in San Francisco. The act required no greater 
exerci.se of reason than is essential to the valid execution of a will 
of real property ; and the authorities which determine the degree 
<»f capacity essential in such cases may properly be relied upon as 
furnishing the proper rule in this ca.se. And those authorities con- 



32G 

cur, especially the later authorities, substantially in this: that it is 
only necessary to the validity of the will that the testator had sufiii- 
cient mind and memory to understand the business upon which he was 
engaged, and the eifeef of the act he was doing. ' He must,' in the lan- 
guage of Judge Washington, in Harrison vs. Kowau (3 Wash. Cir. Ct., 
585), ' have a sound and disposing mind and memory. In other words, 
he ought to be capable of making his will, with an understanding of the 
nature of the business in which he is engaged — a recollection of the prop- 
erty he means to dispose of— of the persons who are the objects of his 
bounty, and the manner in which it is to be distributed between them. 
It is not necessary that he should view his will with the eye of a lawyer, 
and comprehend its provisions in their legal form. It is sufficient if he 
has such a mind and memory as will enable him to understand the ele- 
ments of which it is composed — th'e distribution of his property in its 
simple forms. It is the business of the testator to dictate the purposes 
of his mind, and of the scrivener to express them in legal form.' 

" It is true, as stated by counsel, that the authorities generally go to 
the extent that it requires less intelligence and reason to make a will 
than to execute a contract ; but for the execution of an act of a simple 
character, not involving complicated details, and provisions, the rule laid 
down by Judge Washington is sutficiently stringent. 

"According to that rule, it was material to the valid execution of the 
power in this case, that Hall should at the time have possessed sufficient 
mind and memory to understand the nature of the business he was en- 
gaged in, to know the character and location of the property, and the ob- 
ject and effect of the act he was doing ; in other words, it was essential 
that he should recollect that he was the owner of the property mentioned ; 
that such ijroperty was situated in the city of San Francisco, and that the 
instrument conferred authority for the sale of the same. 

" In considering this case, it is to be remembered that the law presumes 
that every adult man is sane, and possessed of the absolute right to sell 
and dispose of his property in whatever way he may choose — his will in 
every case standing as the reason of his conduct. Whoever denies his 
sanity must establish the position ; the burden of proof rests upon the 
party who alleges the mental derangement. And if, as in the present 
case, the validity of a particular act is assailed, the assailant must estab- 
lish that at the time the act was done the insanity existed. Testimony 
as to previous or subsequent insanity will not answer, unless the insanity 
be shown to be habitual — that is, such as is in its nature continuous and 
chronic. The fact of the existence of a prior or subsequent lunacy, ex- 
cept where it is habitual, does not suffice to change the burden of proof. 
The case is, however, otherwise when such habitual insanity is shown to 
have existed — then the presumption is that the party was insane at the 
time and the burden of proof rests with those who allege the party's 
competency. 

" Again, in considering whether a particular act assailed for the alleged 
insanity of th<? party was valid or not, regard must be had, in the absence 



8-27 

of (lirt'Ct testimony <>n tho point, to all tlic atlonding circunistancos— tin; 
roasouablent'ss of the act in itselt", and its approval li.v the linuil.v and 
relatives of the party. The reasonableness of the aet, and tlie ajipiova! 
of the family and relatives will not render the act valid, if the party 
were at the time insane, but they are circumstances tendin<r to show that 
the party was not at the time incompetent, and that his family and rela- 
tives did not so regard and treat him. 

''In this c<xse it appears that the lot in controversy was at the time in 
the adverse possession of others, and that the Supreme Court of the State 
had decided that Alcalde grants conferred no title. A sale of his interest, 
if anything could be obtained for it, under the circumstances, would .seem 
to have been a judicious and a wise stej). 

" The only testimony which relates directly to the time of the execu- 
tion of the power is that of Broadhead, the witness to the instrument, 
and the officer before whom it was acknowledged. It was the dutj^ of 
this officer to satisty himself of the competency of Hall betbre attesting 
the instrument. As said by the Supreme Court of Pennsylvania in 
AVerstlee vs. Custer (10 Penn., 503), ' No honest mau will subscribe as 
a witness to a will, or any other instrument executed by an insane man, 
an imbecile, an idiot, or a person manifestly incompetent for any reason 
to perform, with legal elTect, the act iu question. A duty attaches to the 
witness to satisfy himself of the competency of the party before he lends 
his name to attest the act. Like the magistrate who takes the acknowl- 
edgment of a deed, he is to be reasonably assured of the facts he under- 
takes to verify, else he makes himself instrumental in a fraud upon the 
public. And, therefore, the legal presumption, always favorable to com- 
petency, is greatly strengthened by the fact of attestation by witnesses.' 

" Such is the general effect of the attestation of a witness and officer, 
but whether the attestation in the present case, under the peculiar cir- 
cumstances in which it was made, can add anything to the legal pre- 
sumption of competency may well be doubted. It is a circumstanoo 
worthy of consideration, whether the Commissioner should have gone to 
the asylum to take the acknowledgment of an inmate of the institution, 
with whom he had no previous acquaintance, without information from 
the officers of the institution, that the patient at the time was in posses- 
sion of sufficient reason to understand the business, which it was pro- 
posed he should execute. 

" Broadhead testifies that he went to the Frank ford Asylum to take the 
acknowledgment of Hall, with whom he was not pi'eviously acquainted ; 
that he read the power to Hall, and handed it to him to read, and asked 
him if he understood it; that Hall replied ' perfectly,' or Avords to that 
effect, and that the property was valuable, and that lie wanted it sold for 
the benefit of his wife and children. The Commissioner also testifies that 
he could not have believed Hall was on all subjects of sound mind from 
the simple fact that he was an inmate of the asylum, but that as to the 
power of attornej^ Hall was clear as to what he was giving ; that there 



328 

was nothing in his appearance which led the Connnissioner to suppose lie 
was insane, and from the fact that he stated that he wanted the property 
to be sold, the Commissioner was led to believe he had a lucid interval. 
The witness adds that he would not have permitted Hall to execute the 
instrument, and he would not himself have taken the acknowledgment, 
unless Hall had been of suflficieut mind, memory, judgment, and under- 
standing to execute such a paper. 

"Aside from the peculiar circumstances under which the Commissioner 
acted, there is one fact in his testimony, which should be considered by 
you as throwing possibly some liglit on the condition of Hall's mind at 
the time, somewhat in conflict with the Commissioner's own opinion. Pf e 
states that Hall at first wrote something besides his signature to the in- 
strument. Tiie instrument itself shows that there has been an erasure 
of soimthing near the signature. The Commissioner states, as his ini- 
l)ression, that Hall wrote some other name than his own. This is at least 
a singular circumstance, if, as stated by the Ctmimissioner, he had heard 
the instrument read and perfectly understood its purport. 

■' We will now briefly refer to the testimony produced by the plaintiffs 
to show the general insanity of Hall at the time he executed the jtovver 
in question. If he was then insane, and his insanity was general, the in- 
strument was a nullity, and no title could be transferred under it. In 
that case the plaintiffs are entitled to a verdict. It matters not, if such 
were the case, what consideration may have been paid to the attorney, or 
Avith what good faith the parties nuiy have purchased. The instrument 
in such case is no more to be regarded as the act of John Hall than if he 
was dead at the time of its execution." 

The Judi^-c then comuieiited at leni(th upon the testi- 
mony and submitted the case. Tlie jury found a verdict 
for the plaintiffs and judgment was entered in tlieir favor, 
Aftervvanlsthe. case was taken to the Supreme Coiu-t ol' the 
United States, where the judgment was alfirmeiL It is re- 
ported under the title of Dexter vs. Hall (15 Wall., 9). 

MONT(iOMERY VS. BeVANS. 

In the preceding case an account is given of the pueblo 
of San Francisco, existing on the ac(|uisition of California, 
its claim to the use of four square leagues of land, and the 
power exercised by its Alcaldes to make grants of portions 
of such lands to individuals for building, cultivation, and 
other purposes. 

On the 1st of December, 1846, a grant was nuide ol' a 
fiftv-varn lot, that is. a lot ol' one hundred and thirt\-seven 



320 

and a liall' foi't stiuarc, williin the limits of San Francisco, 
to John E. Montgomery, 1)V Alcalde IJartU'tt, of that ]ila«'c. 
Subsequently — in Fel)i'uaiy. 1N47 -a grant for the same 
jiremises was made to Andrew .1. (Jrayson l)y iMcalde 
iii'yant, of the town. 

The (jucstion presented to the Court foi' decision was, 
whether the tirst grant evei' took etrect, and tiiat depends 
upon the further question whether, at the time that it was 
made, the grantee was living. On the 15th of November 
preceding he left the Tnited States vessel-of-war, the 
Portsmouth, then lying in the harbor of San Francisco, in 
a launch, witli others, and was never afterwards heai'd 
from. He was nevei' married and left no \\ill, and l)v the 
law of California the father talces the estate of a- child 
dying intestate. 

This suit way brought by the father to recover the prem- 
ises, and w-as tried by the Court without the intervention 
of a jury, by stipuhition of the parties, in August, 1871. 
In liis opinion deciding the case, Judge Field said as fol- 
lows: 

"The testimony of the plaiutili" which proves the deliveiy of the grant, 
also proves the death of the grantee, or rather proves that he has not been 
lieard from since the fifteenth of November, 1846, and the laAv presumes 
the death of a person who has not been heard from for the period of 
seven years. The plaintiff claims the premises as the heir of the grantee, 
and relies upon the presumption of law as to the grantee's death to estab- 
lish his case. And at the same time he relies upon what he insists is a 
presumption of law of equal force, that the grantee having been shown 
to be alive on the 15th of November, 1846, continued alive until the lapse 
of seven years, when the presumption of death arose. The counsel for 
the defendants, on the other hand, contend that there is no presumjUiou 
of the continuance of life during this period of seven years, and that the 
plaintiff asserting that the grantee was alive on the 1st day of December, 
1846, as he must do to give efficacy to the grant of the Alcalde, is bound 
to prove the tact, and failing to do so his chiim of title falls to the ground. 
The argument upon which this position is based is substantially this: 
The presumption of death arises from the lapse of time since the party 
has been heard from; for it is considered extraordinary if he was alive 
that he should not be heard of during this period. Now, if he is to be 
presumed to be alive up to the last day but one of the seven years, there 
is nothing extraordinary in his not having been heard of on the last day, 



830 

and the previous hipse of time during which he was not heard of heconies 
immaterial hy reason of the assumption that he was living so lately. 
Language similar to this is found in the opinion of the Exchequer Cham- 
ber in the case of Knight vs. Nepean (2 IMees. and Wels., 895), and hence 
counsel argue that there is nopresumjition in favor of the continuance of 
life during the penumbra, or death period, of seven years, for if such pre- 
sumption prevailed for one day after disappearance proved, it would nec- 
essarily prevail for six years and 364 days, and the whole basis upon 
which the presumption of death rests would become absurd. The cases 
of Doe vs. Nepean, decided by the Court. of King's Bench, of Knight vs. 
Nepean, mentioned above, decided by the Exchequer Chamber, and the 
case of In re Phene Trusts, recently decided by the Court of Appeal in 
Chancery in England, are cited in support of this position. 

" In Doe vs. Nepean (5 Barn, and Adolph, 86) the lessor of the plaintilf 
claimed the premises in controversy by title accruing on the death of one 
Matthew Knight, who left England for America in 1806 and was not 
heard of after 1807. The action was brought in 1882, and the question 
at the trial was whether the action was barred by the statute, which lim- 
ited the entry of a person into lands to twenty years after title accrued. 
It was admitted that Knight must be presumed to have died, more tlian 
seven years having elapsed since he was heard of, and if that presumption 
were referable to the time when the last intelligence was received of him, 
1807, the action was brought too late ; but if it arose only when seven 
years had elapsed from the receipt of such intelligence the action was in 
time. The judge before whom the case w^as tried was of opinion that 
the presumption of death only arose at the expiration of the period of 
seven years, or in other words, that the presumption of life continued un- 
til that time, and directed a verdict for the plaintiff, with leave to the 
defendant to move for a non-suit. After argument upon the motion the 
Court of the King's Bench held that the lessor of the plaintiff who gave 
no otlier evidence of Knight's death than his absence, tailed to establisii 
that his death took place within twenty years before the action was 
brought. Mr. Chief Justice Denman, in giving the opinion of the Court, 
observed that though absence of a person tor seven years without being 
heard of naturally led the mind to believe he was dead, and therefore 
was sufficient to warrant a presumption of fact that he was dead at the 
end of tliat period, it raised no inference as to the exact time of his death, 
and still less tliat death took place at the end of seven years. 

" In the case of Knight vs. Nepean, which was another action of eject- 
ment for the same premises, the same question was considered by tlie Ex- 
chequer Chamber (2 Mees. & Wells., 805), and after elaborate argument, 
the doctrine laid down in Doe vs. Nepean was approved, the Court ob- 
serving in its opinion that when nothing is heard of a person for seven 
years, it is matter of complete uncertainty at what point of time in those 
seven years he died, and that of all the points of time, the last day is the 
most improbable and incon.sistent with the ground of presuming tiie fact 



:5;n 

of (Icatli. Ami yi't, in the opinion liolh of tlir Kin-:'.s Ilcncli, in Doc vs. 
Xipciin, and of the Exdu-quor Chanilicr, in this oaso, it is stated thai tin- 
hiw iirtsumes that a person once shown to t)e alive continvies so until tlie 
contrary be shown, and that for this reason the onus of estal)lisliin<; the 
death of Knight rested upon the lessor of the plaintiff. The presuniii- 
tion of the continuance of life, thus stated, is inconsistent with the <-on- 
clusions reached in both cases. If the presumption of lif<> exists until 
death is shown, it is diflicuK to perceive why it should not continue, 
when death is not shown, until the i.criod is reached at which the law 
lias tixcd as the eonunencenient of a dillerent presumption. Clearly 
there is no rule or principle which can limit its continuance at any luriod 
within the seven years, if it be admitted to exi.st at all. 

•■In the ease of Phene Trusts (Law Kep., 5, Chan. Appeals, 4:;<ti Ihe 
Court of Appeal in Chancery held, alter elaborate consideration, that the 
time at which a person died ■within the seven years was not a nuitter of 
presumption, but of proof; also, that there was no presumption in favm- 
of the continuance of life after the disappearance of the party, and that 
the onus of proving the death of the party at any particular tiuu' within 
the seven year.s, or that he survived any particular time within that jie- 
riod, lay ui)on the person who claimed a right resting upon the establish- 
ment of either of these facts. 

" In that ease it appeared that one Francis Phene liad died in January, 
1861, having by his Avill bequeathed the residue of his estate to his 
nephews and nieces in equal shares. Nicholas Phen<). Mill was one of his 
nephews, and the share to which he would have been entitled, if living, 
was paid into Court, because it was uncertain whether he survived the 
testator. In 1S69 letters of administration were granted to his brother, 
who presented a petition for the payment of the fund to him. It ap- 
peared in evidence that he left his parents' home in England and went to 
America in August, 1853, and was last heard of in June, 1860. Yice- 
Chancellor James, to whom the petition was presented, granted its prayer, 
holding in deference to three previous decisions of Vice-Chancellor Kin- 
dersly and one of Vice-Chancellor Malins, that the deceased must be pre- 
sumed to have survived the testator, upon the general doctrine that con- 
tinuance of life once shown to exist is presumed until death is proved, or 
at least for a reasonable period after disappearance ; but as he dissented 
from the decisions, he directed the fund to be retained in Court until the 
lespondents had an opportunity to bring the matter before the Court of 
Appeal. 

" The decision of Vice-Chancellor Kinder.sly proceeded uptm the pre- 
sumption of the continuance of life for a reasonable period alter the 
party is shown to have been in existence ; but Vice-Chancellor Malins 
extended the presumption of the continuance of life to the expiration of 
the seven years. In re Phene Trusts (Law Rep., 4, Eq. Cases, 416) the 
doctrine held by the.se judges was overruled, and if the opinion of the 
Court of Appeal contains a correct exposition of the law of England, and 



we are V)ound to presume that it does in the absence of any decision of 
the House of Lords on the subject, that law supports the position of the 
counsel of the defendants in this case, that the onus rests on the plaintiff 
of showing that John E. Montgomery, who disappeared on the 15th of 
November, 1846, and of whom no intelligence has since been received, 
was alive on the 1st day of December, 1846, when the grant of the Al- 
calde was made. 

" But the law as thus declared in England is different from the law 
which obtains in this country, so far as it relates to the presumption of 
the continuance of life. Here, as in England, the law presumes that a 
person who has not been heard of for seven years is dead, but here the 
law, differing in this respect from the law of England, presumes that a 
party oflce shown to be alive continues alive until his death is proved, or 
the rule of law applies by which such death is presumed to have oc- 
curred, that is, at the end of seven years.* And this presumption of life 
is received, in the absence of any countervailing testimony, as conclusive 
of the fact, establishing it for the purposes of determining the rights of 
parties as fully as the most positive proof. The only exception to the op- 
eration of this presumption is when it conflicts with the presumption of 
innocence, in which case the latter prevails. 

"This rule is much more convenient in its application, and works 
greater justice than the doctrine which obtains in England, according to 
the decision in Phene Trusts, that the existence of life at any particular 
time within the seven years, when the fact becomes material, must be 
affirmatively proved. In numerous cases such proof can never be made, 
and property must often remain undistributed, or be distributed between 
the contestants, not according to any settled principles, but according as 
one or the other happens to be the moving party in Court. Take this 
case by way of illustration : A man goes to sea on the first of January, 
1860, and is never heard of again ; his father makes his will and dies on 
the first of July of the same year, leaving to him a portion of his prop- 
erty, and the residue to a distant relative. If persons claiming under 
the missing man apply for the legacy to him, they must fail, for they can- 
not prove that he survived the testator. On the other hand, if the resid- 
uary legatee applies for the property on the ground that the legacy to the 
mi.ssing man has lapsed, he must fail, for he cannot prove that the missing 
man died before the testator ; and the proof of his death in such case would 
be essential to the establishment of the applicant's right. 

" Nor is this rule, as to the presumption of the continuance of life up 
to the end of the seven years, justly subject to the criticism of counsel, 
that it renders absurd the whole basis on which the presumption of death 
rests. There must be some period when the presumption of the contin- 
uance of life ceases and the i:)resumption of death supervenes ; and as in all 
cases whei'e the existence of a presumption arising from the lapse of time 
is limited by a fixed period, it is difficult to assign any valid reason why 
one presumption should cease at the particular time designated, rather 



8:5 ;5 

tliiUi at sonic other jiciiod, and a dil'lfniit pnsnmiit ion arise, except (hat 
it is iniiKH-tant tliat some t inie when llic change takes place should he 
l>eiiiianentl,v cslalilisiied. 

'■ It would lie dillicult to assign any other reason tlian this lor ihe pre- 
sumption, which obtains in some States, that a debt is paid, uikhi which 
no action has been hrongiit, alter tlie lapse of six years; and that it is 
unpaid up to the last hanr oi' the sixth year. The presiiniption of pay- 
ment arisin'g from the lapse ol'tinie without action, it might be said with 
i'(inal i)ropriety, as in the present case with respect to the presumption 
of life to the end of the seventh year, that if tlie presumption of non-pay- 
ment extends ii]) to the end of the sixth year, it renders absurd the whole 
basis upon which the presumption of paynu'Ut rests. So it would b(> diffi- 
cult to give any sufficient reason for admitting in evidence a deed thirty 
years old without other proof of its execution than what is aiiparent on 
its face, and at the same time relusiug admission to a deed except upon 
full proof of its execution, which has existed thirty years less one day — 
except that it is important that the period should be fixed on which the 
presumption arises which supersedes the necessity of direct proof. 

" But it is unnecessary to pursue the subject further. I am of oi)inion 
that the plaintiff" could rely, in the first instance, upon the presumption of 
law as to the continuance of life to establish the fact that John E. Mont- 
gomery was alive on the 1st day of December, 184G, when the grant of the 
Alcalde was issued. This leaves the plaintiff" with a prima facie case for 
reco\ eiy. 

" ^\■e turn now to the consideration of the aftirmative positions of the 
defetidants. They contend that the evidence in the case rebuts the pre- 
sumption of the continirance of life, and warrants the inference that the 
idleged grantee died previous to the lst4)f December, 1846, and that 
the action is barred by the statute of limitations. 

'■ It apx)ears from the evidence that about the middle of November, 
ls4H, a launch from the United States sloop-of-war Warren, a vessel then 
lying in the harbor of San Francisco, and, with the Portsmouth, under 
the command of Captain jSIontgomery, sailed from the harbor with ten 
seamen and two officers for Sutter's Fort on the Sacramento River. 
The two sons of Captain Montgomery w'ere on the launch — ^William H. 
Montgomery, a midshipman and the Sailing Master on the sloop Warren, 
had command of it. John E. Montgomery, who was clerk of Captain 
Montgomery on lioard the Portsmouth, accompanied his brother. It was 
understood at the time on board the Warren that the launch was sent 
with money to pay troops of the United States. Sutter's Fort is distant 
from the harbor of San Francisco about 120 miles, and the voyage be- 
tween the two places is often macle in a single day. An ordinary voyage 
from San Francisco to the Fort and back would not occupy over four or 
ffve days. The launch in this case was propelled both by sails and by 
oars. From the time it sailed no intelligence has' ever been received of 
it, or of either of the officers, or of any of the men who accompanied it. 



334 

About ten days after its departure Capt. Montgomery became uneasy at 
its absence and sent out several boats in search of his sons and the men 
who sailed with them, and these boats were kept on the search for about 
two weeks, but no trace could be found of the launch or men. Of their 
fate, absolute ignorance has existed to this day, now nearly a quarter of 
a century since their disappearance. Captain Montgomery himself left 
the port of San Francisco with the Portsmouth on the 5th or 6th of De- 
cember following. 

" Now it appears to me that there are only two inferences which can 
1)6 driiwn Irom these facts, when considered with reference to the diarac- 
ter and positions of the men and officers: One is, that they died during 
the period within which they should have returned to San Francisco ; 
the other is that they deserted from the service. The latter inference 
cannot be entertained for several reasons : First, de-sertion is the highest, 
and with cowardice, the basest of offences which can be committed by 
men in the naval service; it hiis never, it is believed, been charged upon 
a naval officer of the United States. It can never, therefore, be accepted 
as an explanation of any act of his, except upon the clearest proof Sec- 
ond, if the case had been one only of desertion, and not death, it is highly 
improbable that no intelligence should have been received of any of the 
men during the long period which has since elapsed. Besides, with re- 
spect to the sons of Captain Montgomery, the natural effect of relation- 
ship must have led them to break the silence of years, and to seek com- 
municatioji with their father. 

" The theory of desertion would require us to Ijelieve that officers and 
men conspired to commit the basest of crimes, besides larceny of the pub- 
lic funds in their custody, and that for nearly a quarter of a century they 
have not only kept to themselves the secret of their crime, but have so 
secluded themselves, twelve in number, from observation that no intelli- 
gence respecting any of them has reached the public. 

"If desertion cannot be received as a reasonable explanation of their 
conduct, then death must be inferred. Death is the only fact which rec- 
onciles their conduct with tlie presumption of innocence, and with the 
ordinary conduct which officers and men of the navy pirrsue while in the 
public service. It is the sole fiict which satisfactorily explains, according 
to the common experience and knowledge of men, which are proper 
grounds for judgment, the failure of the officers and men to return to 
San Francisco, and the absolute silence of the world since respecting 
them. 

" My mind is thus led irresistibly from the evidence to the conclusion, 
that the officers and crew on board the launch perished on the voyage to 
Sacramento, within a few days after their departure from San Francisco. 
They probably perished in the bay of San Pablo, or the bay of Suisun. 
If the accident which occasioned their death had occurred in the Sacra- 
mento Eiver, it is proI)Hble that some of the men would have succeeded, 
from the narrowness of the stream, in reaching the shore ; and probably 
some trace of the launch would have been discovered. 



"Findinjr, ;is I do, that John K. JMontgomery died hclorc (he 1st of Dt- 
oember, 184(i, the conclusion follows that the grant of Alcalde r.artlctt, 
intended for him, was inoperative to pass the title, 

" A grant to a person deceased is void. 'I'lie instrument must he issued 
to a person in being, or it will he as invalid as if made to a fictitious party. 
The position of the plaintilf 's counsel that, if tlie grantee were dead at the 
date of the grant, his heir-at-law took the title, is not tenable. The case of 
Landes vs, Brant,* cited in support of this position is an authority against 
it. In that case Clamorgan, the patentee, had died in 1814, and the itatenl 
issued in 1845. The Supreme Court said, that according to the common 
law the patent wasvoid lor want of agrantee, but that the defect Avas cured 
l)y the act of Congress of May 20th, 1836, declaring: ' That in all cases 
Avhere patents for public lands have been or may hereafter be issued, in 
]>ursuance of any law of the United States to a person who had died, or 
who .shall hereafter die, before the date of such patent, the title to the 
land designated therein shall enure to and become vested in the heirs, de- 
visees, and assigns of such deceased patentee, as if the patent had issued 
to the deceased person during life.' This act, of course, has no applica- 
tion to grants issued by Alcaldes in the Pueblo of San Francisco, whose 
authority never extended to the alienation of any public lands, but only 
to lauds belonging to the pueblo." 

The Judge, also, in this case considered at letigtli the 
ettect of the statute of Hrnitations upon the riglit of the 
jilaiiitiff, and still more elaltoi'ately upon a subscMpient mo- 
tion for a new trial. 

The judgment entered was for the defendant. 



United States vs. Flint. — United States vs. Throckmor- 
ton.— United States vs. Carpentier. 

When California was acquired by the United States a 
very large portion of it, particularly that portion situated 
in the valleys, which was fitted for agricultural and graz- 
ing purposes, had been alienated by grants of the former 
government of ]\Iexico. It was the policy of that govern- 
ment to encourage the settlement of the country, and for 
that purpose land was readily granted to settlers, in large 
([uantities, upon their application. 13y the treaty of cession 
with Mexico the United States stipulated for the protec- 

10 How.. 3?:?. 



tion of ;ill riulits of property of ihc iiili:il>itaiits o1' tlic 
coded coniitry. To carry out this stipulation tlie act of 
Congress of March 3, 1851, to settle private huid claims in 
California was passed. The long and tedions proceedings 
which the holders of such grants were required hy it, and 
subsequent acts, to take, in order to secure a recognition of 
tlieii' claims and the patent of the United States, are set 
forth in the opinion af Judge Field which is given below. 
It occupied, in the majoi'ity of cases, several years of labor, 
accompanied in the meantime with anxiety and constant 
conflict witli intruders and squatters. AVhen such patents 
were finally issued, it was hoped and beheved that peace 
and (piiet were secured to the possessors in the enjoyment 
of the land patented, but this proved to be a delusion. 
The land plunderers immediatelj^ commenced making in- 
discriminate charges of fraud, pei'jury, and subornation of 
perjury against the patentees, and of bribery against all 
or most of the officers of the government, through whose 
agency the patentees' title had been examined and estab- 
lished. In some instances their clamors were of sufficient 
potency to obtain fVom the Attorney-General of the United 
States authority to use his name 'in proceedings l)y the 
government for the cancellation of the patents as having 
been fraudulently obtained. The most notable of these 
oases were those designated at the head o'" this chapter. 
They were heard in the Circuit Court by Judges Field, 
Sawyer, and Hoffman, in Felu'uary, 187(5. Elaborate 
opinions were given in them by Judges Field and Ilotl"- 
man, the former confining liiiuself especially to the case 
of the United States vs. Flint, and the latter to that of the 
United States vs. Carpentier. The following is the opinion 
of Judge Field : 

" The case of the United States vs. Flint is a suit in ecjuitj', tlie main 
object of which is to set aside and annul the decree of the District Court 
of the Southern District of California, contirniinii the claim of Teodocio 
Yorba to the Rancho Lonias de Santiago, situated in the county of Los 
Angeles, in this State, and to recall and cancel the patent issued tliereon 
by the United States. It is brought by the District Attorney lor Cali- 
Jbrnia. and ])iirports to be on behalf ol' the United States. 



" It appears, from the allt<;ati<>iis of tlu- l)ill. and tlir record to wliielt 
the bill refers, that, in Oetober, 1 8r)2, the eUiiinant— wlio has sine- il( - 
ceased — presented to the Board of Land Commis.sioners, created under 
the act of Conjiress of .March :M, 1851, to ascertain and setth> private 
hxnd claims iu California, a petition setting fortii his claim to the rancho 
in question, and stating that the same Avas granted to him in -Alay, 18-lfi, 
by the Governor of the Department; that the grant had been approved 
by the Departmental Assembly; that Juridical possession of the land had 
been delivered to him by competent authority, and its boundaries dc- 
lim>d, and that he was then, and had been previously in its ])eaceable oc- 
cupation. 

" With the petition, and as part thereof, the claimant i)resented coi)ies 
of the grant and act of juridical possession, accompanied 1)y a transla- 
tion of the same, and pra_yed that the grant be adjudged valid, and con- 
lirmed to him. The Board of Commissioners considered the claim thus 
presented, and took the depositions of several witnesses in support of it 
and in August, 1854, rendered a decree adjudging it to be valid, and di- 
recting its confirmation. In November, 1855, a petition was filed on be- 
half of the United States, in the District Court for the Southern District 
of California, for a review of the decision, alleging that the claim con- 
tirmed was invalid, and the decision of the Commissioners erroneous ; 
that the allegations of the claimant in his petition were unsupported by 
sufficient proof; and denying that he had any right or title to the land 
confirmed, or to any part of it. The claimant answered this petition, 
joining issue upon its allegations, and the Court took jurisdiction of the 
case, heard it anew, and, in December, 1856, rendered its decree, affirm- 
ing the decision of the Commissioners, and re-adjudged the claim to be 
valid. An appeal from this decree to the Supreme Court of the United 
States was allowed, but the Attorney-General, after some months' delib- 
eration, gave notice that the appeal would not be prosecuted, and there- 
upon the District Court, upon the consent of the District Attornev, va- 
cated the order allowing the appeal, and gave the claimant leave to pro- 
ceed upon its decree as a final decree in the case. A survey of the land 
was subsequently made under the direction of the Surveyor-General of 
the United States for California, and approved by that officer, and in Fi'b- 
ruary, 18G8, a patent was issued to the claimant. 

"It thus appears that, after a contest for nearh' sixteen years before 
officers and tribunals of the United States, the claimant obtained a pat- 
ent from the government — an instrument designed to give to its holder 
security atid protection in the enjoyment of the property covered by its 
terms. All the defendants acquired their interest in the land after the 
decree of confirmation, and two of them after the patent was issued. 

" Nineteen years after the final decree was thus rendered, and eight 
years after the patent was issued, the present bill was filed. And as 
grounds for setting aside and annulling the decree, and recalling and can- 
celling the patent, the District Attorney alleges, upon information and 



belief: 1st. Thiit tlio grant and aot of juridical possession were made 
subsequent to the acquisition of the country in 1846, and were fraudu- 
lently antedated, and that this appears on the face of the original papers 
on file in the Spanish archives in the custody of the Surveyor-General 
of the United States ; that the claimant fraudulently omitted to exhibit- 
a complete record of the proceedings and only presented extracts from 
them, and by this suppression the Law Agent of the United States was 
misled, the United States deprived of all opportunity to contest the con- 
firmation, and the Land Commission and Court were deceived into a 
confirmation of the claim ; and 2d. That previous to the issue of the 
alleged grant, and as early as 1840, the claimant had obtained from the 
Mexican nation a grant of eleven leagues, situated in the counties of 
Sacramento, San Joaquin, and Amador, Avhich was subsequently con- 
firmed by the Supreme Court of the United States ; that, by the laws of 
Mexico, a grant for more than eleven leagues could not be made to the 
same person, and that the claimant was, therefore, disqualified from re- 
ceiving any other grant, and that the existence of this prior grant was 
fraudulently concealed from the Law Agent of the United States, the 
Land Commission, and the District Court. 

"The District Attorney also alleges in the bill, upon information and 
belief, that the approved survey is not in conformity with the boundaries 
given in the diseno, or map accompanying the grant and the act of jurid- 
ical possession, but embraces a much greater quantity, and was made upon 
the fraudulent instigation and procurement of three of the defendants. 
The District Attorney therefore prays that, in case he fail to obtain the 
annulment of the decree, and the recall and cancellation of the patent, 
the boundaries of the tract confirmed may be re-established and fixed in 
accordance with the views stated by him as to the location intended by 
the grant and act of juridical possession. 

"The first inquiry, which naturally arises upon the perusal of this bill, 
is as to what jurisdiction this Court has to interfere with and review the 
determinations of th e Land Com mission and District Court upon the validity 
of claims to land derived from Mexican or Spanish authorities, and of the 
Land Department in approving the surveys of the claims confirmed. The 
questions submitted to the Commission and the District Court were not 
within the ordinary cognizance of a Court of Law, or a Court of Equity. 
They related to the obligations devolving upon our government from' the 
concessions of the former government to its inhabitants. How far these 
concessions should be respected and how far enforced were the matters to 
be considered ; and in their determination the tribunals were to be gov- 
erned by the stipulations of the treaty, the law of nations, the laws, 
usage, and customs of the former government, the principles of equity 
and the decisions of the Supreme Court, so far as they were applicable. 

" By the transfer of California from Mexico to the United States, the 
rights of private property of the inhabitants were not affected. They 
remained as under the former government. The jiublic pro])erty of Mex- 



ico and sovorcijiiif y over the countrv alone i)ass('(l to the I'niti