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HARVARD LAW SCHOOL
LIBRARY
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12 Public /^TioNS of S. Whitney & Co.
Desty'8 Federal Frocedure.—A Manual of Practice
in the Courts of the United States. Embracing the
Bevised Statutes of the United 3tate^, relating to
Federal Courts and Practice therein, together with
the Rules and Orders promulgated by the Supreme
Court of the United States; annotated with Refer-
' ences to Decisions of the Federal Courts. By Bobebt
Desty, Attorney at Law. Fourth issue. 1 vol.,
18mo ! 33 00
* It is just one of those handy little things which every
practitioner and officer of the Federal Courts always
needs to have by him."— ^on. Joseph P. Bradley.
** It will be kept constantly on my table. Its size, itai
binding, what it includes and what it excludes, make it a
little gem of the first water, which every one connected
with the practice in the Federal Courts, whether as iudges,
lawyers, ortofficers of the Court, will find available. To
the compiler the classes above mentioned owe a common
obligation. "—JJoTi. Samuel F. Miller,
" It contains in a compact form that necessary informa-
tion respecting the Federal Courts and the Federal laws
which can now only be found in numerous books. So far
as I have been able to test it, its^ statements may be relied
upon as accurate."— J3b7i. Ward Hunt ^ Utica, i\r. Y.
" I shall derive much aid from consulting it."— fibn.
Samuel Blatchford, New York.
" It seems to be compiled with care and discrimination,
and will undoubtedly prove a very convenient book of
reference for all practitioners in the United States Courts,
and especially for the judges, who I find are expected to
supply all deficiencies that counsel may indulge them-
selves in with respect to matters of practice."— fibw. J.
Lowell, Boston. J
** I find it exceedingly useful and valuable. The ar-
rangement is convenient, and the notes make the book an
excellent manual of reference. It seems to me that Mr.
Desty has done a good service and I hope that the encour-
agement he may receive will incite him to renewed labor."
—Hon. N. Shipman, Hartford.
*' I have no hesitancy in saying that it will be of great
benefit and usefulness to Federal Judges and to practi-
tioners in the National Courts. The paper, the c^'^r
print, and the binding are in every sense excellent, c«nd
give a strong hint to our best p ibli^bing houses earft ol
California to excel you, if they c£.n."— Son. John Et%f' •
Atlanta. - ^
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/
Publications op S. Whitney & Co. 11
Desty's Federal Citations.— An Alphabetical Table
of the English and American Oases cited in the Opin-
ions of the Courts of the United States, stating the
Points as io which they are cited, and showing the ef-
fect of such Citation by Letters and Characters, as
follows: -^Affirmed, ^Cited, ^Denied, ^Harmonized,
^Limited, ^Modified, <>Overruled, ^Reversed, <iQues-
tioned or .Doubted, tCriticised, ^Distinguished. By
Robert Desty, author of "Federal Procedure," "Cal-
ifornia Citations," etc. 1 vol., 8vo., pp. 810 $6 00
" It speaks for itself."— Ccw^raZ Law Journal
" The book bears evidence of great industry, patience,
and care on the part of the author."— ifr. Justice Strong.
'* It is one of the true tools of the trade now so indis-
pensable."— jSou^Acm Law Seview.
" Already I have employed it several times to ascertain
the status and relation of cases, and with entire satisfac-
tion."— ifr. Justice Hunt.
" The work is a monument of careful and painstaking
labor; and that it will prove useful, if not absolutely nec-
essary, to the profession, cannot be doubted. The author
is already well known through his valuable hand-book on
Federal TTOcedure.**— Northwestern Reporter.
" "Mi, Desty's Federal Citations is certainly something
novel in the way of a Law Book, but it needs but a mo-
ment's reflection to see that it cannot but be a very use-
ful one."— CTiifi/" Justice Waite.
" I shall often find it useful in the course of investiga-
tion." — Mr. JvMice Bradley.
*' The work will prove valuable to the bench and bar in
preparing for the argument or decision of cases on trial, as
it will readiiy show whether a case cited has been either
acknowledged as authority by the Federal courts, or has
been received as authority on a single point but denied as
to another."— jl/6any Law Journal.
• « •' The practitioner may thus see at a glance the
status of any case in the Federal courts, or, having one
. case on a given subject, can readily find a long chain of
authorities. Immense labor has been expendecTupon the
/preparation of this volume. It is exhaustive and accu-
1 .le, as far as ty© have been able to discover from a care-
ftil examination, and will be very useful to judges and
"petitioners."— Fa. Law Journal.
'* Price, six dollars."— iSi/mncr Whitney d Co.
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THK
Constitution
tJISriTED STATES.
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\,7
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THB
::>.
CONSTITUTION ' ^
OVTBS
UNITED STATES
▲HNOTAXED BT
ROBERT DESTT,
Author of "Federal Procedtire," "Federal Citations,"
«« Commerce and Navigation," "Shipping
and Admiralty/' etc.
aA^ FBAKCISCO {
SUMNER WHITNEY & CO,
1881.
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as
OOFTSIOHT
BT SUMNEB WHITNBT * 00,
1879.
Bacon A Company, Printers,
San Francisco, CaL
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PEEFAOE.
In the preparation of this work the author has endeav-
ored to famish all the authorities derived from the decis-
ions of the Supreme Court and the various Circuit and
District Courts of the United States, as well as of the
courts of last resort of the several States, touching the
I)oints which have been the subject of controversy since
the adoption of the Constitution, and down to the time of
publication of this volume. The points decided have been
condensed as much as possible, leaving to the reader the
opi>ortunit7 to consult the decisions in which such points
have been discussed by references to the authorities con-
snlted. The notes will, it is believed, furnish a full and
complete and at the same time a ready index to the points
which have been called in question for the last hundred
years.
BOBERT DESTY.
SXPTXXBBB, 1879.
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J
CONTENTS.
FBBAlCBLa.
ABTIOLE L
Sao. l.-L(
SXO. »^1.
2.
8.
4.
5.
U^jr filled.
I Chosen.
*• fctie.
*• of Vice.
on.
ent.
ivictloii.
'• olaw.
8SO. 4--1. Legiiitop
Congress mar alter state regulations,
except as to the place of elections.
unless otherwise appblnted by law.
S9Q. s«-»l. Each house to ju<%e the^elecuons^ and qnallflcar
i. Congress to assemble at least ouce a year.^ _
meeting to be on first Monday of December.
)tums, and qnalli
business quorom.
dbyC'Qogle
.ions of Its members,
majority to constltate a business quorum.
O OONTENTS.
Alt Zy Sec. S^ConHnued.
smaller number may acljonm and compel at-
tendance,
penalties may be prescribed for non-attend-
ance.
2. Eacli house may determine rales of its proceedings,
may punish for disorderly behavior,
with concurrence of two-thirds may expel.
9. Each hOQse shall keep a lournal of proceedings,
may publish the same.
yeas and nays to be entered on desire of one-
flfth.
4. Neither house shall adjourn for more than three days with-
out consent of the other,
nor to any other place than that in which
^ . _ they are sitting.
Bso. 6.— 1. Compensation for services to bo fixed by law.
to be paid out of U. S. Treasury.
Members to be privileged from arrest during the session,
except for treason, felony, and breach of peace,
to be privileged in gomg to and returning
from the sessions.
for speech or debate not to be questioned else-
- .. where.
2. No member to be eligible for a civil office under Oovem-
ment created or increased in emoluments
during his term,
no person holding U. S. office to be eligible as
. a member.
HBO. tfh Bills for raising revenue to originate in the House ; but the
Senate may propose or concur with amendments.
2. Erery bill to be presented to the President for his ap-
proval.
If returned, objections to bo entered on the
jonrnaL
and to be reconsidered,
on concurrence of two-thirds, the bill to be
sent to other house.
If approved by two-thirds, to become a law.
the vote of both houses to be by yeas and nays,
names of members voting to be entered on
Journals.
If bill not returned by President in ten days,
to be a law, unless Congress, by adjournment,
prevent the return.
S. Con cur « m t resolutions to be presented to the President ex»
jp^o
_ Jlsapr ,-
to iiass them.
Saa ••—1. CoDgresBahidl hare power to lay and collect taxes, duties.
ceptonqnestion of adjournment.
If disapproved, require two-thirds
to pass them.
jwer to lay and collect taxes, duties,
imposts, and excises.
to pay debts and provide for common defense
and general welfare.
an duties, imposts, and excises to be uniform.
2. to borrow money on credit of U. S.
S. to regulate commerce
with foreign nations,
among the several States,
and with the Indian tribes.
4. to establish uniform rule of naturalization, and
uniform laws on subject of bankraptdes.
8. to coUi money and regulate its value, and llx
the standard of weights and measures.
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OONTBNTS. 9
Art Z, Seo. a— CbuMmfeaf.
e. to proTlde for jmnishment of counterfeiting
securities ana coin of U. 8.
7. to establish post-offices and post>road8.
8. to promote progress of science and nsefol arts
Dv secnrfng to autliors and inventors exclu-
sive riffbts
9. to constRute' tribunals inferior to Supreme
Court.
10. to define and punish piracies and felonies on
high seas, and offenses against law of n»>
tions.
11. to declare war,
grant letters of marque and reprisal,
and make rules concerning captures.
12. to raise and support armies.
appropriations to be limited to two years.
IS. to proviae and maintain a navy.
14. To make rules for government of land and naval forces.
Ifi. To provide for callmg forth the militia.
to execute laws, suppress insurrections, etc.
IC To provide for organizing and arming the militia.
and for governing tbem when in employ of
Government,
authority of States as to appointment of offi-
cers reserved,
also as to disciplining militia.
17. To exercise exclusive l^^Iatlon over seat of government.
and over sites of public works or buildings.
18. To make aU laws necessary and proper to carry out its
powers.
Baa* O.— 1. IflSgration or importation of slaves, restriction of.
tax or duty qiay be imposed.
2. ffttbeoi corpus not to be suspended except.
8. No bill of attahider or expost/aeto law to he passed.
4. No direct tax unless in proportion to census.
5. No tax or duty on exports from any State.
e. No preference to be given in conmierce or revenue to
ports of any State.
no entry* clearance, or duties on vessels
bound to or from States.
7. Money to be drawn only on appropriations made by law.
statements of receipts and expenditures to he pub-
lished.
8. No title of nobility to l>e granted,
no officer to accept presents firom foreign powers.
tO.—L No State to enter into any treaty, alliance, or confedera-
tion,
or grant letters of marque and reprlsaL
or coin money,
or emit bills of credit,
or make anything but gold and silver a legal
tender,
or pass any bill of attainder,
or ex post facto law.
or law impairing obligation of contract,
or grant any title of nobility.
t. No State, without consent of Congress, shall lay any
imposts or duties,
except absolutely necessary,
and the net produce to be for use of Gov-
ernment,
and the laws subject to revision of Ooogress.
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!• 00]
Alt I, Seo. lO.^Continued,
9. Ho State, wltbont consent of Congren, to laj duty on
tonnage,
or keep troops or sblps of war In ttme of
peace,
or enter into any agreement or compact with
other States, or with » f oielgnpower.
miless actually invaded or in Imminent daxk-
ger.
ARTICLE n.
Sao. 1.->1. The exeeative power is rested In a President.
nls term of office shall be four yean,
the term of office of Vice-President i
be the same.
they shall be elected together.
2. Kach State shidl appoint Presidential electors.
to be m number equal to the whole number of
their Senators and Bepresentatives.
no Senator or Bepresentotive or public IT. S.
officer shall be an elector.
8. Kanner of yoting by electors.
Bepbaled. See Xllth Amendment.
4. Congress may determine time of choosing electors.
and the day of their meeting to elect,
to be the same throughout tne U. S.
6. Natural-bom citizens alone eligible for President.
to have attained the age of thirty-flye, and
been fourteen years a resident.
6. The Vice-President to assume the duties of President in
case of his death, resignation, etc.
Congress may by law provide for the case of death, resig-
nation, etc.. of the nesident.
and declare what officer shaU then act.
7. The compensation of the President shall not be increased
or diminished during his tenn of
office,
and be shall not receive durlngthat pe-
riod any other emolument.
8. Oath or affirmation of President.
Sao. S.— 1. PresidentshallbeCommanderinChiefof AnnyandNavy.
and of the Militia of the several States, when
in service of the U. S.
may require written opinions of executive of*
fleers,
may grant reprieves and pardons, except in im-
peachments.
2. By and with consent of Congress, may make treaties.
and shall nominate and appoint Ambassadors, etc
and all other officers whose appointments are not
otherwise provided for.
Congress may vest appointment of inferior officers
as they think proper.
5. President may fill vacancies during recess of Senate.
Sbo. 8.— President to give information of state of the Union.
to reconunend measures to Congress.
on extraordinary occasions may convene Congress.
In case of disagreement may adjourn Congress.
to receive Ambassadors and Ministers.
to take care that the laws are administered.
to commission all officers of the U. 8.
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CONTEHTfl. U
Art XL— Con/foiied.
Sao. 4.— Fnsldent and Ylee-President to be remored on ImpeMOi-
ment for treason, bribery, or hlgb crimes.
AETICUES in.
^■a 1.— Jndleial power is Tested in a Supreme Court and Inferior
Courts, to be establisbed by Congress.
Judges to hold otBce during good benaTior.
compensation not to be diminished during
continuance in office.
Brno. ••— L Jurisdiction to extend to all cases arising under the Con-
stitution, laws, and treaties,
to all cases affecting Ambassadors, Ministers,
and Consuls,
to all cases of admiralty and maritime Juris-
diction,
to controversies to which the U. 8. is aparty.
to controversies between two or more States,
between a State and citizens of another State,
between citizens of different States,
between citizens of the same State claiming
lands under grants of different States,
and between a State, or its citizens, and f or>
eign States, citizens, or subjects.
S. Soprems Court shall have original Jurisdiction
In all cases affecting Ambassadors, Ministers, or
Consuls,
and cases in which a State is a party,
and appellate jurisdiction both as to law and
fact, under regulations to be made by Con-
gress.
S. Trials of all crimes, except in cases of impeachment, to be
to be naa in State where crime has been committed,
when not committed within a State, to be where
Sao. 8<»1. Treason
Congress may direct.
consists in levying war against, or adhering to
enemies of the U. S., giving them aid and
comfort.
no conviction unless on testimony of two wit-
nesses.
or on confession in open Court
S. Comgreas may declare the punishment for treason.
no attainder shau work corruption of blood or
forfeiture beyond the life of the party at-
tainted.
AETICLB IV.
8so. 1.— Von fiath and credit to be given to public acts, records, and
judicial proceedingi of States.
Congress may prescnbe the manner of their proof,
and the effect thereof.
Saa •«->!. Gitiiens of each State are entitled to the privileges and
immunities of citizens in the several States.
2. Fugitives from Justice to be delivered up to State having
Jurisdiction of the crime.
S. Fugitives from service or labor to be delivered np.
Saa 8«— 1. New States may be admitted by Congress, but &ey can-
not be formed within the Jurisdiction of a State without
consent of its Lc^cislatiize.
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12 00NTEMT8.
Axt. 17 f Seo. 3,~C<miimied,
nor by the junction of two or more States without consent
of States concerned and of Congress.
2. Congress may dispose of and make rules and regulations
_f or territories or oth^r property belonging to the U. S.
^ ^ Claims of the U.S. or of a State not to be prejudiced.
Sao. 4.— A republican form of government guaranteea to each State,
and protection of each against invasion,
and agidnst domestic violence.
AETICLB V.
CoDgreas-may propose amendments, when deemed neces-
saiy.
or on application of two-thirds of the State Legis-
latures.
convention to be caUed.
to be ratified by Legislatures or conventions of
three-fourths of the States.
no State, without Its consent, can bo deprived of
Its equal sufCrage In the Senate.
ABTICLE yi.
1. An existing liabilities are valid against the U. S.
2. The Constitution, laws, and treaties are the supreme law
of the land,
judges in every State bound thereby.
3. All officers, executive, legislative, and judicial, both Fed>
eral and State, to be bound by oath or affirm
mation to support the Constitution,
no religious test shall be required as a qualifi-
cation to any office.
AETICLB Vn.
The ratification of nine States sufficient.
Attestation clause.
Slfiputures.
AJOENDMENTS.
AETICLB I.
Caogrsfls can make no law respecting religion.
or abridging the freedom of speech or of the presa
or the right to peaceably assemble and petition for
redress.
AETICLB n.
The right of the people to keep and bear arms ShaU not be
Infringed.
AETICLB ni.
Vo soldier to be quartered in any house without the conaant
of the owner,
nor In time of war but In a manner proscribed by
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13
ARTICLE IV.
Tbe right of security against searches and seizures shall not
warrants on probable cause to be supported by
oath or affirmation,
the place, person, and thing to be described in the
warrant.
ARTICLE V.
Presentment or indictment before grand jury essential to
trial for crime,
except as to land or naval forces or militia in
time of war.
no person to be pnt twice in jeopardy,
nor be compelled to be witness against himself,
nor be deprived of life, liberty, or property
without due process of law.
nor shall private property be taken for public
use without compensation.
ARTICLE VI.
In ortminal trials, accused shall have the right to a speedy
and public trial.
by a jury, of State and district where crime was
committed.
and to be informed of the nature and cause of
accusation.
and to be confronted with witnesses against him.
and to have compulsory process for witnesses in
his favor.
and to have the assistance of counsel for his de-
fense.
ARTICLE Vn.
In civil actions, the right of trial by jury shaO be preserved
where the value in controversy exceeds twenty dol-
lars,
facts tried by jury are re-examlnable only according
to the rules of common law.
ARTICLE Vin.
Excessive bail shall not be required,
nor excessive fines imposed,
nor cruel nor unusual punishments inflicted.
ARTICLE IX.
The enumeration of rights not to disparage others retained
by the people.
ARTICLE X.
Powers not delegated nor prohibited to the States are re-
served to the States or to the people.
DBSTY • Fed. Con.— ».
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14 CONTENTS.
ARTICLE XI.
The judicial power not to extend to actions against a State
by citizen of anotlier State, or of a foreign state.
ARTICLE XII.
Presidential electors to meet in their respective States.
and vote by ballot for President and Vice-Presi-
dent,
the ballots for each office to be distinct,
distinct lists to be made, signed, certified, and
transmitted to the President of the Senate,
the President of the Senate to open the certifi-
cates in presence of both houses of Congress,
and the votes shall then be counted,
the person having the greatest number of votes
shall be President,
if there be no majority the House of Bepresent-
atives shall elect from those having the high-
est number, not exceeding three,
the votes shall be taken by States, each State
having one vote,
a quorum shall consist of a representation from
two-thirds of the States,
a majority of all the States necessary to a choice,
if the House neglect to choose a President, the
Vice-President shall act as such,
the person having the greatest number of votes
for Vice-President shall be Vice-President>
if it be a majority of the electors,
if not such majority, then the Senate shall
choose the Vice-President from the two high-
' est on the list.
a quorum shall consist of two thirds of the
whole number of Senators,
a majority shall be necessary for a choice,
constitutional ineligibility for President ren-
ders a person ineligible for Vice-President.
ARTICLE x;ni.
Neither slavery nor involuntary servitude, except for crime,
shall exist in the United States.
Congress may enforce this article.
ARTICLE XrV.
Sbo. 1.— All persons bom or naturalized in the TJ. S. are citizens of
the U. S. and of the State where they reside.
States cannot abridge the privileges and immu-
nities of citizens,
nor deprive any person of life, liberty, or prop-
erty without due process of law.
nor deny to any person the equal protection of
the law.
Sec. 9.-»Bopresentati ves shall be apportioned according to the whole
number of persons in each State, exclud-
ing Indians not taxed,
but when the right to vote is denied to male
citizens over twenty-one, the basis of
representation shall oe reduced accord-
ingly.
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us
Art ZZV, Seo. 2.— Continued.
except for participation in the rebellion or
for other crimes.
8X0. 8.— Persons engaged in insurrection or rebellion having prevl-
ously taken the oath to support the Constitution
of the n. S. are dlsquallflea from holding office.
Ck)ngress may by a two-third vote of each house re-
move the disability.
' debtc
8X0. 4»— The validity of the public debt of the U. S., authorized by
law, shall not be questioned,
debts or obligations incurred in aid of rebellion are llle>
clauns for loss or emancipation of any slave are illegal
and void.
8X0. &•— Congress shall have power to enforce these provisions.
ARTICLE XV.
8X0. I.— The right of citizens to vote shall not be denied or abridged
on account of race, color, or previous condition of servi-
tude.
8B0. 9.— Congress shall have power to enforce this article.
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Constitution
OP THE
XJN"ITED STATES.
Wb the People of the United States, in Order to
form a more perfect Union, establish Justice, insure
domestic Tranquility, provide for the common de-
fence, promote the general Welfare, and secure the
Blessings of Liberty to ourselves and our Posterity,
do ordain and establish this Constitution for the
United States of America.
ARTICLE I.
Section. 1. All legislative Powers herein granted
shall be vested in a Congress of the United States,
which shall consist of a Senate and House of Kepre-
sentatives.
Section. 2. ^The House of Representatives shall be
composed of Members chosen every second Year by
the J?eople of the several States, and the Electors in
each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State
Legislature.
2 No Person shall be a Representative who shall not
have attained to the Age of twenty-five Years, and
been seven Years a Citizen of the United States, and
who shall not, when elected, be an Lihabitant of that
State in which ho shall be chosen.
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Art. I, Sec. 3 constitution. 18
'[Representatives and direct Taxes shall be appor-
tioned among the several States which may be included
within this Union, according to their respective Num-
bers, which shall be determined by adding to the
whole Number of free Persons, including those bound
to Service for a Term of Years, and excluding Indians
not taxed, three-fifths of all other Persons.] The
actual Enumeration shall be made within three Tears
after the first Meeting of the Congress of the United
States, and within every subsequent Term of ten
Years, in such Manner as they shall by Law direct.
The Number of Representatives shall not exceed one
for every thirty Thousand, but each State shall have
at Least one Representative ; and until such enumera-
tion shall be made, the State of New Hampshire shall
be entitled to chuse three, Massachusetts eight, Rhode-
Island and Providence Plantations one, Connecticut
five, New- York six. New Jersey four, Pennsylvania
eight, Delaware one, Maryland six^ Virginia ten, North
Carolina five. South Carolina five, and Georgia three.
4 When vacancies happen in the Representation from
any State, the Executive Authority thereof shall issue
Writs of Election to fill such Vacancies.
*The House of Representatives shall chuse their
Speaker and other Officers; and shall have the sole
Power of Impeachment.
Section. 3. ^The Senate of the United States shall
be composed of two Senators from each State, chosen
by the Legislature thereof, for six Years ; and each
Senator shall have one Vote.
2 Immediately after they shall be assembled in Con-
sequence of the first Election, they shall be divided
as equally as may be into three Classes. The Seats of
the Senators of the first Class shall be vacated at the
Expiration of the second year, of the second Class at
the Expiration of the fourth Year, and of the third
Class at the Expiration of the sixth Year, so that one-
third may be chosen eveiy second Year ; and if Vacan-
cies happen by Resignation, or otherwise, during th,e
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19 coNSTiTOTioN Art. I, Sec. 4
Becess of the Legislature of any State, the Executive
thereof may make temporary Appointments until the
next Meeting of the Legislature, which shall then fill
such Vacancies.
3 No Person shall be a Senator who shall not have
attained to the Age of thirty Years, and been nine
Years a Citizen of the United States, and who shall
not, when elected, be an Lihabitant of that State for
which he shall be chosen.
*The Vice President of the United States shall be
President of the Senate, but shall have no Vote, un-
less they be equally divided.
^The Senate shall chuse their other Officers, and also
a President pro tempore, in the Absence of the Vice
President, or when he shall exercise the Office of
President of the United States.
«The Senate shall have the sole Power to try all Ln-
peachments. When sitting for that Purpose, they
shall be on Oath or Affirmation. When the President
of the United States is tried, the Chief Justice shall
preside : And no Person shall be convicted without
the Concurrence of two-thirds of the Members present.
<f Judgment in Cases of Impeachment shall not ex-
tend further than to removal from Office, and disquali-
fication to hold and enjoy any Office of honor. Trust
or Profit under the United States ; but the Pariy
convicted shall nevertheless be liable and subject to
Indictment, Trial, Judgment and Punishment, ac-
cording to Law.
Section. 4 ^The Times, Places and Manner of
holding Elections for Senators and Eepresentatives,
shall he prescribed in each State by the Leg^islature
thereof ; but the Confess may at any time by
Law make or alter such Kegulations, except as to the
Places of chusing Senators.
2 The Congress shall assemble at least once in every
Year, and such Meeting shall be on the first Monday
in December, unless they shall by Law appoint a dif-
ferent Day.
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Art. I, Sec. 7 constitution. 20
SBCTfON. 5. ^Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Mem-
bers, and a Majority of each shall constitute a Quorum
to do Business ; but a smaller Number may adjourn
from day to day, and may be authorized to compel the
Attendance of absent Members, in such Manner, and
under such Penalties as each House may provide.
2 Each House may determine the Rules of its Pro*
ceedings, punish its Members for disorderly Behavior,
and, with the Concurrence of two thirds, expel a
Member.
3 Each House shall keep a Journal of its Proceed-
ings, and from time to time publish the same, except-
ing such Parts as may in their Judgment require
Secrecy ; and the Yeas and Nays of the Members of
either House on any question shall, at the Desire of
one fifth of those present, be entered on the Journal.
^Neither House, during the Session of Congress,
shall, without the Consent of the other, adjourn for
more than three days, nor to any other Place than that
in which the two Houses shall be sitting.
Section. 6. ^The Senators and Representatives shall
receive a Compensation for their Services, to be ascer-
tained by Law, and paid out of the Treasury of the
United States. They shall in all Cases, except Trea-
son, Felony and Breach of the Peace, be privileged
from Arrest during their Attendance at the Session of
•their respective Houses, and in going to and returning
from the same ; and for any Speech or Debate in either
House, they shall not be questioned in any other Place.
2 No Senator or Representative shall, during the
Time for which he was elected, be appointed to any
civil Office under the Authority of the United States,
which shall have been created, or the Emoluments
whereof shall have been encreased during such time ;
and no Person holding any Office under the United
States, shall be a Member of either House during his
Continuance in Office.
Sbotion. 7. ^All Bills for raising Revenue shall
Digitized by LaOOQ IC
21 oomnxnTTiON. Art. 1, 8ec. 8
originate in the House of Kepreaentatiyes ; but the
Senate may propose or cod cur with Amendments as on
other Bills.
^Every Bill which shall have passed the House of
Eiopresentatives and the Senate, shall, before it become
a £aw, be presented to the President of the United
States ; If he api>roye he shall sign it, but if not he
shall return it, with his Objections to that House in
which it shall have originated, who shall enter the
Objections at large on their Joiumal, and proceed to
reconsider it. If after such Reconsideration two thirds
of that House shall agree to pass the Bill, it shall be
sent, together with the Objections, to the other House,
by which it shall likewise be reconsidered, and if ap-
proved by two thirds of that House, it shall become a
Law. But in all such Cases the Votes of both Houses
shall be determined by Teas and Nays, and the Names
of the Persons voting for and against the Bill shall be
entered on the Journal of each House respectively.
If any Bill shall not be returned by the President
within ten days (Sundays excepted) after it shall have
been presented to him, the Same shall be a Law, in
like Manner as if he lubd signed it, unless the Con-
gress by their Adjournment prevent its Return, in
which Case it shall not be a Law.
*Every Order, Resolution, or Vote to which the
Concurrence of the Senate and House of Representa-
tives may be necessary (except on a question of Ad-
journment) shall be presented to the President of the
United States ; and before the Same shall taJte Effect,
shall be approved by him, or being disapproved by
him, shall be repassed by two thirds of the Senate and
House of Representatives, according to the Rules and
Limitations prescribed in the Case of a Bill.
SBcnoy. 8. ^The Congress shall have Power To lay
and coUect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defence and
general Welfare of the United States ; but all Duties,
Imposts and Excises shall be uniform throughout the
Umted States ;
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Art. 1, 8ec. 8 constitution. 22
2 To borrow Money on the credit of the United
States;
'To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes ;
^To establish an uniform Kule of Naturalization,
and uniform Laws on the subject of Bankruptcies
throughout the United States ;
*To coin Money, regulate the Value thereof, and of
foreign Coin, and fix the Standard of Weights and
Measures ;
*To provide for the Punishment of counterfeiting
the Securities and current Coin of the United States ;
^To establish Post Offices and post Roads ;
®To promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writ-
ings and Discoveries ;
^To constitute Tribunals inferior to the supreme
Court ;
i<^To define and punish Piracies and Felonies com-
mitted on the high Seas, and Offences against the Law
of Nations ;
11 To declare War, grant Letters of Marque and Re-
prisal, and make Rules concerning Captures on Land
and Water ;
12 To raise and support Armies, but no Appropriation
of Money to that Use shall be for a longer Term than
two Years ;
I' To provide and maintain a Navy ;
i*To make Rules for the Government and Regula-
tion of the land and naval Forces ;
i*To provide for calling forth the Militia to execute
{he Laws of the Union, suppress Insurrections and
repel Invasions ;
"To provide for organizing, arming, and disciplin-
ing, the Militia, and for governing such Part of them
as may be employed in the Service of the United
States, reserving to the States respectively, the Ap-
pointment of the Officers, and the Authority of training
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23 COV8TITUTZON. Art. 1, 8ea 9
the Militia according to the discipline prescribed by
Congress;
17 To exercise exclusive Legislation in all Cases what-
soever, over such District (not exceeding ten Miles
square) aa may, by Cession of particular States, and
the Acceptance of Congress, become the Seat of the
Government of the United States, and to exercise like
Authority over all Places purchased by the Consent of
the Legislatiu'e of the State in which the Same shidl
be, for the Erection of Forts, Magazines, Arsenals,
dock- Yards, and other needful Buildings ; — And
i^To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Pow-
ers, and all other Powers vested by this Constitution
in the Government of the United States, or in any
D^artment or Officer thereof ;
Section. 9. ^The Migration or Lnportation of such
Persons as any of the States now existing shall think
proper to admit, shall not be prohibited by the Con-
gress prior to the Year one thousand eight hundred
and eight, but a Tax or duty may be imposed on such
Importation, not exceeding ten dollars for each Person.
2 The Privilege of the Writ of Habeas Corpus shall
not be suspended, unless when in Cases of Rebellion
or Livasion the public Safety may require it.
^No Bill of Attainder or expos t facto Law shall be
^No Capitation, or other direct, tax shall be laid,
unless in Proportion to the Census or Enumeration
herein before directed to be taken.
*No Tax or Duty shall be laid on Articles exported
from any State.
^No Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over
those of another ; nor shall Vessels bound to, or from,
one State, be obliged to enter, clear, or pay Duties in
another.
'No Money shall be drawn from the Tresteury, but
in Consequence of Appropriations made by Law ; and
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Art. II,,8ac. 1 cqnbtitutiok. 24
a regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published
from time to time.
®No Title of Nobility shall be granted by the United
States : and no Person holding any Office of Profit or
Trust under them, shall, without the Consent of the
Congress, accept of any present, Emolument, Office, or
Title, of any land whatever, from any King, Prince,
or foreign State.
Section. 10. ^No State shall enter into any Treaty,
Alliance, or Confederation ; grant Letters of Marque
and Reprisal ; coin Money ; emit Bills of Credit ;
make any Thing but gold and silver Coin a Tender in
Payment of Debts ; pass any Bill of Attainder, ex
post facto Law, or Law impairing the Obligation of
Contracts, or grant any Title of Nobility.
2No State shall, without the Consent of the Con-
gress, lay any Imposts or Duties on Imports or Exports,
except what may be absolutely necessary for executing
it's inspection Laws : and the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports,
shall be for the Use of the Treasury of the United
States ; and all such Laws shall be subject to the
Revision and Controul of the Congress.
^No State shall, without the Consent of Congress,
lay any Duty of Tonnage, keep Troops, or Ships of
War in time of Peace, enter into any Agreement
or Compact with another State, or with a foreign
Power, or engage in War, unless actually invaded, or
in such imminent Danger as will not admit of delay.
ARTICLE, n.
Sbction. 1. ^ The executive Power shall be vested in.
a President of the United States of America. He
shall hold his Office during the Term of four Years,
and, together with the Vice President, chosen for the
same Term, be elected, as follows
2 Each State shall appoint, in such Manner as the
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25 coKSTTTUTiq^. Art. II, Sec. 1
Legislature thereof may direct, a Number of Electors,
equal to the whole number of Senators and Repre-
sentatiyes to which the State may be entitled in the
Congress : but no Senator or Representative, or Per-
son holding an Ofl&ce of Trust or Profit under the
United States, shall be appointed an Elector.
* [ *< The electors shall meet in their respective States,
and vote by ballot for two Persons,. of whom one at
least shall not be an Inhabitant of the same State with
themselves. And they shall make a List of all the
Persons voted for, and of the Number of Votes for
each ; which List they shall sign and certify, and
transmit sealed to the Seat of the Government of the
United States, directed to the President of the Senate.
The President of the Senate shall, in the Presence of
the Senate and House of Representatives, open all the
Certificates, and the Votes shall then be counted. The
Person having the greatest Number of Votes shall be
the President, if such Number be a Majority of the
whole Number of Electors appointed ; and if there be
more than one who have such Majority, and have an
equal Number of Votes, then the House of Repre-
sentatives shall immediately chuse by Ballot one of
them for President ; and if no Person have a Majority,
then from the five highest on the List the said House
shall in like Manner chuse the President. But in
chusing the President, the Votes shall be taken by
States, the Representation from each State having one
Vote; A quorum for this Purpose shall consist of a
Member or Members from two-thirds of the States,
and a Majority of all the States shall be necessary to
a Choice. In every Case, after the Choice of the
President, the Person having the greatest Number of
Votes of the Electors shall be the Vice-President. But
if there should remain two or more who have equal
Votes, the Senate shall chuse from them by Ballot the
Vice-President. "]
This Clause has been superseded by the twelfth
amendment, p. 35.
Desty Fed. Con.— a.
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Art. H, Sec. 2 co|fSTiTnTiON. 2S
^The Congress may determine the Time of chusing
the Electors, and the Day on which they shall give
their Votes ; which Day shall be the same throughout
the United States.
*No Person except a natural bom Citizen, or a
Citizen of the United States, at the time of the adop-
tion of this Constitution, shall be eligible to the Office
of President ; neither shall any Person be eligible to
that Office who shall not have attained to the Age of
thirty five Years, and been fourteen Years a Resident
within the United States.
«In Case of the Removal of the President from Office,
or of his Death, Resignation, or Inability to discharge
the Powers and Duties of the said Office, the same
shall devolve on the Vice President, and the Congress
may by Law provide for the Case of Removal, Death,
Resignation, or Inability, both of the President and
Vice President, declaring what Officer shall then act
as President, and such Officer shall act accordingly,
until the Disability be removed, or a President s^all
be elected.
'The President shall, at stated Times, receive for hia
Services, a Compensation, which shall neither be en-
creased nor diminished during the Period for which
he shall have been elected, and he shall not receive
within that Period any other Emolument from the
United States, or any of them.
^Before he enter on the Execution of his Office, he
shall take the following Oath or Affirmation : — "I do
solemnly swear (or affirm) that I will faithfully exe-
cute the Office of President of the United States, and
will to the best of my Ability, preserve, protect and
defend the Constitution of the United States. "
Section. 2. ^ The President shall be Commander in
Chief of the Army and Navy of the United States,
and of the Militia of the several States, when called
into the actual Service of the United Stetes ; he may
require the Opinion, in writing, of the principal Offi-
cer in each of the executive Departments, upon any
Digitized by LaOOQ IC
27 CONSTITUTION. Art. II,Sec.4
Subject relating to the Duties of their respective
Offices, and he shall have Power to grant Keprieves
and Pardons for Offences against the United States,
except in Cases of Impeachment.
2 He shall have Power, by and with the Advice and
Consent of the Senate, to inake Treaties, provided two
thirds of the Senators present concur ; and he shall
nominate, and by and with the Advice and Consent
of the Senate, shall appoint Ambassadors, other pub-
lic Ministers and Consuls, Judges of the supreme
Court, and all other Officers of the United States,
whose Appointments are not herein otherwise pro-
vided for, and which shall be established by Law : but
the Congress may by Law vest the Appointment of
such inferior Officers as they think proper, in the
President alone, in the Courts of Law, or in the
Heads of Departments.
'The President shall have Power to fill up all Va-
cancies that may happen during the Kecess of the
Senate, by granting Commissions which shall expire
at the End of their next Session.
Sbction. 3. He shall from time to time give to the
Congress Liformation of the State of the Union, and
recommend to their Consideration such Measures as
he shall judge necessary and expedient; he may, on
extraordinary Occasions, convene both Houses, or
either of them, and in Case of Disagreement between
them, with Respect to the Time of Adjournment, he
may adjourn them to such Time as he shall think
propter ; he shall receive Ambassadors and other public
Ministers ; he shall take Care that the Laws be faith-
fully executed, and shall Commission all the Officers
of the United States.
Section. 4. The President, Vice President and all
civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of,
Treason, Bribery, or other high Crimes and Misde-
meanors.
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Art. m, Sec. 3 constitution. 28
ARTicMJ m.
Section. 1. The judicial Power of the United
States, shall be vested in one supreme Court, and in
such inferior Courts as the Congress may from time to
time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices
during good Behaviour, and shall, at stated Times,
receive for their Services, a Compensation, which shall
•not be diminished during their Continuance in Office.
Section. 2. ^The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Consti-
tution, the Laws of the United States, and Treaties
made, or which shall be made, under their Authority ;
— ^to all Cases affecting Ambassadors, other public
Ministers and Consuls ; — ^to all Cases of admiralty and
maritime Jurisdiction ; — ^to Controversies to which
the United States shall be a Party ; — to Controversies
between two or more States ; — ^between a State and
Citizens of another State ; — ^between Citizens of differ-
ent States, — between Citizens of the same State claim-
ing Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign
States, Citizens or Subjects.
^In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State
shall be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned,
the supreme Court shall have appellate Jurisdiction,
both as to Law and Fact, with such Exceptions, and
under such Begulations as the Congress shall make.
3 The Trial of all Crimes, except in Cases of Im-
peachment, shall be by Jury ; and such Trial shall be
held in the State where the said Crimes shall have
been committed ; but when not committed within any
State, the Trial shall be at such Place or Places as the
Congress may by Law have directed.
Section. 3. ^Treason against the United States,
shall consist only in levying War against them, or in
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fd coKSTcrunoK. Art. IV, Sac 3.
adhering to their Enemies, giving them Aid and Com-
fort In o Person shall be convicted of Treason unless
on the Testimony of two Witnesses to the same overt
Act, or on Confession in open Court.
2 The Congress shall have Power to declare the Pun-
ishment of Treason, but no Attainder of Treason shall
work Corruption of Blood, or Forfeiture except during
the Life of the Person attainted.
ARTICLE IV.
Section. 1. Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial
Proceedings of every other State. And the Congress
may by general Laws prescribe the Manner in which
such Acts, Records and Proceedings shall be proved,
and the Efifect thereof.
Section. 2. iThe Citizens of each State shall be
entitled to all Privileges and Immunities of Citizens in
the several States.
2 A Person charged in any State with Treason, Fel-
ony, or other Crime, who shall flee from Justice, and be
found in another State, shall on Demand of the execu-
tive Authority of the State from which he fled, be
delivered up to be removed to the State having Juris-
diction of the Crime.
'No Person held to Service or Labour in one State,
under the Laws thereof, escaping into another, shall,
in Consequence of any Law or Regulation therein, be
discharged from such Service or Labour, but shall be
delivered up on Claim of the Party to whom such
Service or Labour may be due.
Section. 3. ^New States may be admitted by the
Congress into this Union ; but no new State shall be
formed or erected within the Jurisdiction of any other
State ; nor any State be formed by the Junction of
two or more States, or Parts of States, without the
CoDBent of the Legislatures of the States concerned
as well as of the Congress.
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Art. VI ooNsTrrtmoN. 90
^The Oon|;^ress shall have Power to dispose of and
make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United
States ; and nothing in this Constitution shall be so
construed as to Prejudice any Claims of the United
States, or of any particular S^te.
Section. 4. The United States shall guarantee to
every State in this Union a Republican Form of Gov-
ernment, and shall protect each of them against Inva-
sion ; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened)
against domestic Violence.
ARTICLE V.
The Congress, whenever two thirds of both Houses
shall deem it necessary, shall propose Amendments to
this Constitution, or, on the Application of the Le^-
latures of two thirds of the several States, shall call a
Convention for proposing Amendments, which, in
either Case, shall be valid to all Intents and Purposes,
as Part of this Constitution, when ratified by the
Legislatures of three fourths of the several States, or
by Conventions in three fourths thereof, as the one or
the other Mode of Ratification may be proposed by the
Congress ; Provided that no Amendment which may be
made prior to the Year One thousand eight hundred
and eight shall in any Manner affect the first and
fourth Clauses in the Ninth Section of the first Article ;
and that no State, without its Consent, shall be de-
prived of its equal Suffrage in the Senate.
ARTICLE YI.
^All Debts contracted and Engagements entered
into, before the Adoption of this Constitution, shall be
as valid against the United States under this Constitu-
tion, as under the Confederation.
2This Constitution, and the Laws of the United
States which shall be made in Pursuance thereof ; and
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31 coNBTiTUTiON. Slgiiers
all Treaties made, or which shall be made, \mder the
Authority of the United States, shall be the supreme
Law of the Land ; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.
3The Senators and Representatives before mentioned,
and the Members of the several State Legislatures, and
all executive and judicial Officers, both of the United
States and of the several States, shall be bound by
Oath or Affirmation, to support this Constitution ; but
no religious Test shall ever be required as a Qualifica-
tion to any Office or public Trust under the United
States.
ARTICLE VIL
The Ratification of the Conventions of nine States,
shall be sufficient for the establishment of this Consti-
tution between the States so ratifying the Same.
DoNB in Convention by the Unanimous Consent of the
States present the Seventeenth Day of September
in the Year of our Lord one thousand seven hundred
and Eighty seven, and of the Independance of the
United States of America the Twelfth In Wit-
ness whereof We have hereunto subscribed our
Names, Qo : WASHINGTON—
Pi^esidt aiid Deputy from Virgima
New Hampshire,
JowK Lanodok Nicholas Oilman
MassachMsetts.
Nathaniel Gobham Rufus Kma
Connecticut.
Wm. Saml. Johnson Roobb Shbbman
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BIcneirs coNSTrrunosr.
New York,
Alexakdeb Hamilton
New Jersey,
Wil: Livingston Wm. Paterson
David Bbearley Jona: Davton
Pennsylvafiia.
B. Franklin Thos. Fitzsimons
Thomas Mifflin Jabed Inoersoll
EoBT. MoBBis James Wilson
Geo. Clymeb Gk>uv Mobbis
Delaware,
Geo: Read Richabd Bassett
GuiTNiNa Bedfobd Jun Jaco : Bboom
John Dickinson
Maryland,
James McHenby Danl. Oabboll
Dan of St Thos Jenifer
Virginia.
John Blaib — Jambs Madison Jr.
North Ca/rolina,
Wm. Blount Hu Williamson.
RicHD. Dobbs Spaight
South Carolina,
Ji RUTLEDGB, ChABLES PiNCKNEY
PlEBCB BUTLEB.
Chables Ooteswobth Pinckney
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33 OOITOTITUTION. Am. IV
Georgia.
William Fbw Abb Baldwin
Attest WILLIAM JACKSON Secretary
S
AJEbTICLBS nr ADDITION TO, AND ABCENDUENT OF, THE
CONSTITnnON OF THE UNITED STATES OF AlfEBICA,
PKOPOSED BY CONOBESS, AND BAHFI^D BY THE LEO-
ISLATUBBS OF THE SEVEBAL STATES PTniSUANT TO
THE FIFrH ABnCLE OF THE OBIOINAL CONSTITUTION.
[ARTICLE L]
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise
thereof ; or abridging the freedom of speech, or of the
ress ; or the right of the people peaceably to assem-
ble, and to petition the (Government for a redress of
grievances.
[ARTICLE n.]
A well regulated Militia, being necessary to the secu-
rity of a free State, the nght of the people to keep and
bear Arms, shall not be infringed.
[ARTICLE in.]
No Soldier shall, in time of peace be quartered in
any house, without the consent of the Owner, nor in
time of war, but in a manner to be prescribed by law.
[ARTICLE IV.]
The right of the people to be seciu^e in their per-
sons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
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Am. Vn CONSTITUTION. 3i
Warrants shall issue, but upon probable cause, sup-
ported by Oath or afBrmation, and particularly describ-
ing the place to be searched, and the persons or things
to be seized.
[ARTICLE v.]
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in
actual service in time of War or public danger ; nor
shall any person be subject for the same offence to be
twice put in jeopardy of life or limb ; nor shall be
compelled in any Criminal Case to be a witness against
himself, nor be deprived of life, liberty, or property,
without due process of law ; nor shall private property
be taken for public use, without just compensation.
[ARTICLE VI.]
In all criminal prosecutioi.i3, the accused shall enjoy
the right to a speedy and public trial, by an impartial
jury of the State and district wherein tne crime shall
have been committed, which district shall have been
previously ascertained by law, and to be informed of
the nature and cause of the accusation ; to be con-
fronted with the witnesses against him ; to have com-
pulsory process for obtaining Witnesses in his favor,
and to have the Assistance of Counsel for his defence.
[ARTICLE vn.]
In suits at common law, where the value in contro-
versy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury
shall be otherwise re-examined in any Court of the
United States, than according to the rules of the com-
mon law.
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S6 ooirsTiTUTioir. Aid
[ARTICLE Vin.]
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and imusual punishments
inflicted.
[ARTICLE IX.]
The enumeration in the Constitution, of certain
ri^tSy shall not be construed to deny or disparage
oUiers retained by the people.
[ARTICLE X]
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.
[ARTICLE XL]
The Judicial power of the United States shall not
be construed to extend t* any suit in law or equity,
commenced or prosecutec*^ against one of the United
States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.
[ARTICLE Xn.]
The Electors shall meet in their respective states,
and vote by ballot for President and Vice-President,
one of whom, at least, shall not be an inhabitant of
the same state with themselves ; they shall name in
their ballots the person voted for as President, and in
distinct ballots the person voted for as Vice-President,
and they shall make distinct lists of all persons voted
for as President, and of all persons voted for as Vice-
President, and of the nimiber of votes for each, which
lists they shall sign and certify, and transmit sealed
to the seat of the government of the United States,
directed to the President of the Senate ; — The Presi-
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Am. TTTTT, Seo. 1. conbtitutiok. 36
I
dent of the Senate shall, in the presence of the Senate '
and House of Bepresentatiyes, open all the certificates
and the votes shall then be counted ; — The person j
having the greatest number of votes for President, i
shall be the President, if such number be a majority I
of the whole number of Electors appointed ; and if no {
person have such majority, then from the persons hav-
ing the highest numbers not exceeding three on the
list of those voted for as President, the House of
Bepresentatives shall choose immediately, by ballot, <
the President. But in choosing the President, the
votes shall be taken by states, the representation from
each state having one vote ; a quorum for this purpose
shall consist of a member or members from two-thirds I
of the states, and a majority of all the states shall be
necessary to a choice. And if the ^ouse of Bepre-
sentatives shall not choose a President whenever the
right of choice shall devolve upon them, before the
fourth day of March next following, then the Vice-
President shall act as President, as in the case of the
death or other constitutional disability of the Presi-
dent. The person having the greatest number of votes
as Vice-President, shall be the Vice-President, if
such number be a majority of the whole number of
Electors appointed, and if no person have a majority,
then from the two highest numbers on the list, the
Senate shall choose the Vice-President ; a quorum for
the purpose shall consist of two-thirds of the whole
number of Senators, and a majority of the whole num-
ber shall be necessary to a choice. But no person
constitutionally ineligible to the office of President
shall be eligible to that of Vice-President of the United
States.
ABTICLE Xni.
Section 1. Neither slavery nor involuntary servi-
tude, 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 juris-
diction.
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37 CONSTITUTION. Am. XIV, Sec. 3
Section 2. Congress shall have j^ower to enforce this
article by appropriate legislation.
ARTICLE XIY.
Section 1. All persons bom 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 wJiich shall abridge the privileges or immimi-
ties of citizens of the United States ; nor shall any
State deprive any person of life, liberty, or property,
without due process of law ; nor deny to any person
within its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned
among the several States according to their respective
numbers, counting the whole number of persons in
each State, excluding Indians not taxed. But when
the right to vote at any election for the choice of
electors for President and Vice President of the United
States, Representatives in Congress, the Executive end
Judicial officers of a State, or the members of the Leg-
islature thereof, is denied to any of the male inhabit-
ants of such State, being twenty-one years of ago,
and citizens of the United States, or in any way
abridged, except for participation in rebellion, or other
crime, the basis of representation therein shall be re-
duced in the proportion which the number of such
male citizens shall bear to the whole number of male
citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Repre-
sentative in Congress, or elector of President and Vice
President, or hold any office, civil or military, under
the United States, or under any State, who, havii^
previously taken an oath, as a member of Congress, or
as an officer of the United States, or as a member of
any State legislature, or as an executive or judicial
officer of any State, to support the Constitution of the
United States, shall have engaged in insurrection or
Destt Fed. Con.— 4.
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Am. XV, Sec. 2 constitutiok. 38
rebellion against the same, or given aid or comfort
to the enemies thereof. But Congress may by a vote
of two-tliirds of each House, remove such disability.
Section 4. The validity of the public debt of the
United St^*^^s, authorized by law, including debts in-
curred ior payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any
State shall assume or pay any debt or obligation in-
c rrod in aid of insurrection or rebellion against the
United States, or any claim for the loss or emancipa-
tion of any slave ; but all such debts, obligations and
claims shall be held illegal and void.
Section 5. The Congress shall have power to en-
force, by appropriate legislation, the provisions of this
article.
ARTICLE XV.
Section 1. 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.
Section 2. The Congress shall have power to enforce
this article by appropriate legislation.
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Constitution ^. United" Smtes.
Constitutional construction.— A constitution in an
instrament of government, made and adopted by the peo-
ple for practical purposes,^ and can only operate prospect-
ively. 2 It should be construed so as best to subserve the
great objects for which it was made.s Like every other
grant it is to have a reasonable construction according to
the import of its terms,^ as defined in the vocabulary of
the nation which adopted it.^ Courts of justice cannot
give it a strained construction, and they are not author-
ized to so construe any clause as to defeat its obvious ends
when another construction, equally accordant with the
words and sense, will enforce and protect them.^ So,
w^here words admit of different intendments, that must
be selected which is most consonant to the object in view.8
It should be so construed as to give effect to its different
clauses, as far as possible reconcile them, and not let their
seeming repugnancy destroy them.^ It is not to be con-
strued technically,^* but must receive a practical con-
struction. ^^ Perhaps the safest rule of interpretation is to
look to the nature and objects of the particular powers,
duties, and rights, with all the lights and aids of contem-
porary history, and to give to the words of each clause such
operation and force as is consistent with its legitimate
meaning, ^2 and not nullify or evade them by astute verbal
criticism without regard to the aim and objects of the in-
strument, and the principles on which it is based-^^ Courts
can only construe the powers granted, they cannot inquire
into the policy or principles which induced the grant. 1*
1 Metropolitan Bank r. Van Dyck, 27 N. T. 400.
2 Chicago V. Bumsey, 87 111. 385.
3 North Rlv. S. Co. v. Livingston, 3 Cow. 713; 1 Hopk. 150; Hayno v-
Powers, 39 Barb. 427; Metropolitan Bank v. Van Dyck, 27 N. Y. 40n.
4 Martin v. Hunter, 1 Wheat. 304; 7 Cranch, 727.
5 Kunzler v. Kobaos, 5 Hill, 317; Fadleford v. Mayor &c. 14 Ga. 43S.
6 Law r. People, 87 ni. 385.
7 Prlgg V. Commonwealth, 16 Peters, 539.
[391
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40 CONSTRUCTION.
8 Aldrlch V. Kinney, 4 Conn. 380.
9 Cohens V. Ylrginia, 6 Wheat. 264; Marbory v. Madison, 1 Cranch.
138.
10 People r. Dawell, 25 Mich. 247 ; Borman v. State, 34 Ala. 216.
11 Ballroad Co. v. Fenlston, 18 Wall. 5.
12 Frlgg V. Commonwealth, 1(> Peters, 539.
13 Passenger Cases, 7 How. 282.
14 Martin v. Hunter, 1 Wheat. 304; 7 Cranch, 727.
Construction of terms.— Although the spirit of the
Constitution is to be respected not less than its letter, yet
the spirit is to be coUectefl chiefly from its words, i The
argument from inconvenience cannot prevail over plain
words or clear reason ; but a construction which would
necessarily occasion public or private mischief must yield
to a construction which will occasion neither. 2 So, a con-
struction long carried into practice, though not sanctioned
by judicial authority, is worthy of great consideration;*
so, great weight is attached to contemporaneous exposi-
tion,* or where the commencement of the practice -was
almost coeval with the adoption of the instrument.^* A
case within the words of a rule must be within its opera-
tion, unless something in the literal construction is so ob-
viously absurd or mischievous, or so repugnant to the
general spirit of the instrument, as to justify au exception.^
Words are to be taken in their natural and obvious sense,
and not in a sense unreasonably restricted or enlarged.''
Adherence to the letter must not be had in opposition to
the reason and spirit of the enactment, and to effectuate
the object intended, it may be proper to deviate from the
usual sense of the words. 8 Every word must have its
due force and appropriate meaning, and no word should
be rejected as superfluous orunmeaning,^ and care should
be taken to reconcile words apparently discordant, in such
a manner as to give, if possible, meaning to every word.^®
The same words have not necessarily the same meaning
when found in different parts of the instrument, and the
peculiar sense in which a word is used is to be determined
by the context, -i unless the meaning is completely ascer-
tained. ^^ Affirmative words are often in their operation
negative of other objects than those aflirmed, but they
should not be construed negatively where they have full
operation without such construction, la The exception of
a thing from the general words proves that the thing ex-
cepted would be within the general clause had the excep-
tion not been made.H
1 Sturges V. Crovminshield, 4 Wheat. 122.
2 Ex parte Griffin, Chase, 364; 25 Tex. Supp. 623.
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PREAMBLE. 41
3 Martin v. Hunter, I Wheat. 304: McCalloch v. Maryland, 4 Wheat.
316: Houston v. Moore, 5 Wheat. 1; 3 Serg. & B. 169; Briscoe v. Bank
of Ky. 11 Peters, 257; Cooley v. Port Waruens, 12 How. 299; Adaina v.
Story, 1 Paine, 79; Hicks v. Hotchkiss, 7 Johns. Ch. 2J)7; Metropolitan
Bank v. Van Dyck, 27 N. Y. 400.
4 Cohens v. Virginia, 6 Wheat . 264.
5 Martin v. Hunter, 1 Wheat. 304^ HQuston v. Moore, 5 Wheat. 1;
Ogden V. Saunders, 12 Wheat. 213; Prigg v. Commonwealth, 16 Peters,
5^; Jackt;. Martin, 12 Wend. 311; 14 W^nd. 507.
6 Dartmouth College v. Woodward, 4 Wheat. 518; Aldrich r. Kin-
ney, 4 Conn. 380.
7 Martin v. Hunter, 1 Wheat. 304; Metropolitan Bank v. Vim Dyck,
27 N. Y. 400.
8 Aldrich v. Kinney, 4 Conn. 380.
9 Holmes v. Jennison, 14 Peters, 540 : Hitchcock v. Aiken, 1 Caincs,46r«:
State V. Scott, 9 Ark. 270.
10 Curtis V. Gibbs, 2 N. J. 405. ,
11 Cherokee Nation v. Georgia, 5 Peters, 1; Wheaton r. Peters, 8
Peters, 531.
12 U. S. p. Burr, 2 Whart. Cr. Cas. 573.
13 Cohens v. Virginia, 6 Wheat. 264; Marbury r. Madison, 1 Cranch,
137.
14 Gibbons v. Ogdeu, 9 Wheat. 1; 17 Johns. 488; 4 Johns. CIi. 150;
Brown V. State, 12 Wheat. 419.
PREAMBLE.
We, the people of the United States^ in order to form a
more perfect union, establish justice, insure domestic tran-
quUllty, prorMefor the common defense, promote the f/eneral
loelfare, and secure the blessings of liberty to ourselves ami
our posterity, do ordain and establish this Constitution for
the United States of America.
The people of the United States.— The body of
electors composing the State,i people and citizens being
synonymous terms, both describing the political body
who form the sovereignty, hold the power and conduct
the Government through their representatives, the sover-
eign people, every citizen being a constituent member.^
Freemen of color were a part ot the people. ^ The people
of the United States had the power to invest the General
Government with all the powers they might deem proper
and necessary, and to prohibit to the States the exercise
of any powers incompatible with the objects of the general
compact,* and to resume or modify the powers granted.^
1 Penhallow v. Doane, 3 Dall. 93.
2 Scott t*. Sandf ord, 19 How. 404.
3 Scott r. Sandf ord, 19 How. 573, per Curtis, J.; U. S. v. R odes, i
Abb. U. 8. 41; North Carolina v. Manuel, 4 Dev. & B. 20-
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42 PREAMBLE.
4 martin v, HuntCT, 1 Wheat. 326.
5 McCuUoch V. Marylaad. 4 Wheat. 404.
More pezf ect union.— This phrase recognizes a polit-
ical body known as the United States.^ *' In order to form
a more perfect union " by substituting a National Govern-
ment, acting with ample powers directly upon the citizen,
instead of the Confederate Government, which acted with
jiowers greatly restricted, and only upon the States.^ It
is tlic union of States under a common constitution which
forms tlie distinct and greater political unit designated as
the United States,* by a compact made by the people of
the United States to govern themselves as to general ob-
jects in a certain manner; 5 a government emanating from
the people; o^the creation of their will, and existing only
by their will ; '< and for certain purposes, a consolidated
government; «* a body politic and corporate. ••> It is a Gov-
ernment of delegated powers alone, limited in number
but not in degree, and supreme within the scope of its
delegated powers, i^ with absolute sovereignty to the ex-
tent of its powers, 11 the sovereignty being separate and
distinct from State sovereignty,!^ the State constitutions
being limitations on sovereign powers already existing, i*
1 Texas V. White, 7 Wall. 727.
2 Chisholm v. Georgia, 2 Dall. 4G3 ; McCulloeh v. Maryland, 4 Wbeat.
31(5; Rhode Island v. Massachusetts, 12 Peters, 657; XJ. S. v. Craikshank,
li U. S. SoO.
3 Lane Co. r. Oregon, 7 Wall. 71; Collector v. Day, 11 WalL 125.
4 Texas r. White, 7 Wall. 721.
5 ChLsholm v. Georgia, 2 Dall. 463.
6 McCuIIoch r. Maryland, 4 Wheat. 316. ,
7 Cohens v. Virginia, 6 Wheat. 264.
R North River S. Co. v. Livingston, 3 Cowen, 713.
9 Diincan v. U. S. 3 Wheat. 181; U. S. v. Tlngev, 5 Peters, 128: TJ. 8.
V. Bndley, 10 Petei*s, 343; Neilson v. Lagow, 12 How. 108; Dixon v. XJ,
S. I IJrocfc. 177; U. S. v. Maurice, 2 Brock. 109; U. S. v. Lane, 3 McLean.
365; Stearns v. U. S. 2 Pahie, 301 ; Dikes v. Miller, 25 Tex. Supp. 290.
10 U. S. F. Cruikshank, 92 U. S. 550; McCulloeh v. Maryland, 4 Wheat.
316; Scott V. Sandford, 19 How. 393; Abiemau v. Booth, 21 How. 506;
Lano Co. r. Oregon, 7 WaU. 76.
1 1 Metropolitan Bank v. Van Dyck, 27 N. Y. 407.
1 ' Martin v. Hunter, 1 Wheat. 304; McCulloeh v. Maryland, 4 Wheat.
n»6; Gibbons v. Ogclen,9 Wheat. 190; Ableman v. Booth, 21 How. 506;
Newoll V. People, 7 N. Y. 93; People t7. N. Y. Cent. R. R. Co. 24 N. Y.
456; Metropolitan Bank v. Van Dyck, 27 N. Y. 411.
13 Ohio Life Ins. Co. v. Debolt, 16 How. 428.
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PREAMBLE. 43
To provide for the common defense is an abso-
lute right of every nationality. ^ The Constitution was
"ordained and established" by "the people" for tliem-
selves, and their own government, and not for the goveru-
uient of the individual States ;'-* and not by the States, but
by the people of the United States,^ acting through dele-
gates by whom they were represented,* and resulted nei-
ther from the majority of the people nor of the States.*
It did not go into effect until the first Wednesday in
March, 1789.C
1 Ex parte Coupland, 26 Tex. 393.
2 Barron r. Baltimore, Teeters, 343 ; Withers c. Buckley, 21 How. 84;
Twltchell V. Coinmoawealiii, 7 Wall. 326; U. S. v. Crulkshank, 92 U. S.
550.
3 Cliisholm V. Georgia, 2 Dall. 463; Martin v. Hunter, 1 Wheat. 324;
Banks v. Greenleaf , 6 Call, 277.
4 Worcester v. (Jeorgla, 6 Peters, 569 ; Barron v. Baltimore, 7 Peters,
243.
5 Ware v. Hylton, 3 Dall. 199 ; Chlsholm v. Georgia, 3 Dall. 419.
6 Owings V. Speed, 5 Wlieat. 420.
POTvers of government.— The Federal Government
is one of enumerated powers ^ — of delegated powers.^
The sovereignty of Congress, though limited to specific
obiects, is plenary as to those objects,^ and supreme in its
sphere.'* The powers of government in the United States
and in the States are separate and distinct, although they
may act on the same subject :» but in case of conflict, that
of the United States Government is supreme.** The Gov-
ernment is constituted with its legislative, judicial, and
executive departments, to act directly on the people with-
out the intervention of the State governments. "> The pow-
ers of Congress are not exclusive except where the Consti-
tution expressly in terms so provides, or where they are
prohibitea to the States, or where there is a direct repug-
nance or incompatibility in their exercise by the States.8
The exercise by a State of a concurrent power must yield
when it conflicts with, or is repugnant to, congressional
legislation.^
1 McCulloch V. Maryland, 4 Wheat. 316; Gibbons v. Ogden. 9
Wheat. 1.
2 Briscoe v. Bk. of Ky. 11 Peters, 257; 7 J. J. Marsh. 349.
3 Gibbons v. Ogden, 9 Wheat. 1.
4 McCnlloch v. Maryland, 4 Wheat. 316 ; Osbom v. Bank of U. 8. 9
Wheat. 738 ; Frasher v. State, 3 Tex. Ct. App. 273; Ibleman ». Booth,
21 How. !W6; Fifield v. Close, 15 Mich. 605 ; State v. Garton, 32 Ind. 1;
State V. Gibson, 36 lad. 389; People r. Brady, 40 Cal. 19i; Lane Co. t>.
Oregon, 7 Wall. 76; V. S. v. Cmlkshank, 92 U. S. 542; 1 Woods, 308;
Braawell r. State, 16 Wall. 130; Gibbons v. Offden, 9 Wheat. 203.
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Art. I, § 2 HOUSE OF REPBESENTATIVES. 44
5 McCulloch t>. Maryland, 4 Wheat. 316: Gibbons t?. Offden, 9 Wheat.
1: Osbom v. Bank of U. S. 9 Wheat. 738; Brown ». Maryland, 12 Wheat.
419; Weston t>. Charleston, 2 Peters, 449; Dobbinsr. Commrs. Erie Co. 16
Peters, 435 ; Collector v. Day, 11 Wall. 113 ; National Bank v. Common-
wealth, 9 wall. 353; Sweatt v. Boston &c. B. B. Co. 6 Bank Beg. 249;
Passenger Cases, 7 How. 282; Tarble's Case, 13 Wall. 897.
6 Tarble's Case, 13 Wall. 397; Matter of Farrand, 1 Abb. U. S. 146.
7 Ex parte Stephens, 70 Mass. 659.
Storges
isher, 2
Sergr. &
V. MiUi,
Slaugh-
ssenger
Bedford
Mr. Sup.
Peters,
\h. C. C.
9 Gibbons v. Ogden, 9 Wheat. 1 ; Brown v. Maryland, 12 Wheat. 419;
Worcester v. Georgia, C Peters, 515; Holmes v. Jennlson, 14 Peters, 640;
U. S. V. Hart, Peters C. C. 390; U. S. t7. New Bedford Bridge, 1 Wood A
M. 418; Commonwealth v. Kimball, 24 Pick. 369.
ARTICLE I.
LEOISLATIYB DBPABTMENT.
Section l.
Legislative power, Congress.
Sec. 1. All legislatice powers herein granted shall he
vested in a Congress of the United States^ lohich shall consist
of a Senate and House of Representatives.
The branches of the Government are distinct and
independent, and cannot encroach upon each other.i The
political power is not subject to judicial interference.^
1 Haybum's Case, 2 Dall. 409, note.
2 Pullan V. Klnsinger, 2 Abb. U. S. 110; Balston v. Oursler, 12 Ohio
St. 10^.
Section 2.
House of Representatives.
1. Members, when and by whom chosen.
2. Qualifications.
3. Apportionment of Bepresentatives, and direct taxes.
4. Vacancies.
5. Speaker. Impeachment.
Sec. 2. The House of Representatives shall be composed
of members chosen every second year by the people of the
several States, and the electors in each State shall have the
auaJ{fications requisite for electors of the most numerouB
branch of tlie State Legislature.
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45 HOUSE OF BEPBESENTATIVES Art. I, § 2
Electors. — Citizenship does not of itself give the risht
to vote, nor the want of it prevent a State from conferring
the right. 1
1 Scott V. Sandford, 19 How. 404.
^No person shall be a Representative who shall not have
attained to the age of twenty-jioe years, and been seven years
a citizen of the United States^ and who shall not, when
electedy be an inhabitant of that State in which he shall be
chosen.
QualificationB.— The qualification of age is not neces-
sary for membership, but a qualilication of long citizen-
ship and of residence. ^ An inhabitant is a bona Jide mem-
ber of the State, subject to all the requisites of law, and
entitled to all privileges and advantages under the law ;^
actual residence is not essential,^ as if a person bo a min-
ister resident at a foreign port.* No additional qualiiica-
tions can rightfully be required by the States.^ The in-
eligibility 01 the member elect gives no claim to the
next highest candidate.^
1 Smith's Case, 1 Am. L. J. 459.
2 BaUey's Case, Clark <fe H. 411.
3 Piggott's Case, Cont. El. Cas. 1864-^, 464.
4 Forsyth's Case, Clark & H. 497; Key's Case, Id. 224; Bamsay v.
Smith, Id. 33.
ft Barney v. McCreery, Clark & H. 176; Tumey v. Marshall, Cont.
£1. Cas. 1864-5, 167.
6 In re Corliss, 16 Am. L. B. 15; Smith v. Brown, Cont. £1. Caa.
1865-71, 395: Blakey v. Ctolladay. Id. 417; Christy's Case, Id. 464; Jones
V. Mann. Id. 471.
^Representatives and direct taxes shall be apportioned
among the several States which may be included within this
Union^ according to their respective numbers, which shall be
determined by adding to the whole number of free persons,
including those bound to service for a term of years, and
excluding Indians not taxed, three-fifths of all other persons.
The actual enumeration shall be made within three years
c^/ter the first meeting of the Congress of the United States^
and within every subsequent term of ten years, in such manr
ner as they shall by law direct, l^he number of RepreseivtOr
tives shall not exceed one for every thirty thousand, but each
State shall have at least one Representative ; and until such
enumeration shall be made, the State of New Hampshire
shall he entitled to choose three, Massachusetts eight, RJwde
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Art. I, § 2 HOUSE OF BEPRESEirCATIVES. 4kG
Island and Providence Plantations one, Connecticut five,
New York six. New Jersey four, Pennsylvania eight, Dela^
Ware one, Maryland six, Virginia ten, North Carolina five.
South Carolina five, and Georgia three.
Constniction. — This clause was not intended to create
an exemption of any State from its due share of the bur-
den, or to make taxation dependent on representation,
but to furnish a standard for the apportionment of each
on the States. 1 It is expressly coniined to the States, and
creates no necessity for extending the tax to the District
of Columbia or the Territories,^ wliere direct taxes are to
be in proportion to the census.^ The term '' direct taxes '*
does not include a tax on notes of State banks, nor on
incomes.^ The "succession tax" is not a ''direct tax,*'
but an imi>ost or excise. ^ "Direct taxes" iniclude cap-
itation taxes and taxes on land.<^ The eighth census as to
apportionment did not take effect till March, 1863.7
1 Lousfliborough v. Blake, 6 Wheat. 317.
2 Loughborough v. Blake, 5 Wheat. 317.
5 Loughborough v. Blake, 5 Wheat. 317.
4 Pacific Insurance Co. v. Soule, 7 Wall. 446; Yeazie Bank v. Feiins,
8 Wall. 54(>; Clark v. Sicfcel, 14 Int. Rev. Rec. 6.
6 Scholey ». Rew, 23 Wall. 331.
6 Hj'lton tj. U. S., 3 Dall. 171; Scholey v. Rew, 23 Wall. 347; License
Tax Cas., 5 Wall. 477.
7 Lowe's Case, Cont. El. Gas. 1864^, 418. See Article 1, Sec. 9 (4).
*When vacancies happen in the representation from any
State, the executive authority thereof shall issue writs ofelec-
tio7i to fill such vacancies.
Vacancies may be created by death, resignation, or
removal, or by the acceptance of an incompatible office. ^
A resignation sent to the governor of a State is sufficient. ^
The executive may issue writs for a new election without
waiting to be informed by the House that a vacancy ex-
ists.8 A member with the governor's certificate is not
Sirmitted to take his seat before tiie organization of the
ouse.* The seat of a Senator holding under executive
appointment is vacated if the legislature fails to elect. »
1 People r. Carrique, 2 Hill, 93; Powell t>. Wilson, 16 Tex. 60; Bien-
court V. Parker, 27 Tex. 662.
2 Edward's Case, Clark & H. 92; Mercer's Case, Ibid. 44; Bledsoe's
Case, Ibid. 869.
3 Mercer's Case, Clark & H. 44.
4 New Jersey Case, Cont. El. Cas. 1864-5, 19.
5 Williams' Case, Cont. £1. 1864-5, 612; Phelps' Case, Ibid. 613.
Digitized by LaOOQ IC
47 SENATE. Art. I| g 3
^ The H&use of Representatives shall choose their Speaker
and other officers; and shall have the sole power of impeach-
ment
Section 8.
JSenate.
1. Senators.
2. Divided into classes. Vacaacies.
3. QuaHflcatlons.
4. President of Senate.
6. Other officers.
6. Impeachment.
7. Judgment on Impeachment.
Bee. 3. 1 The Senate of the United States shall he com-
posed of two Senators from each State, chosen by the legis-
lature thereof for six years ; and ea>ch Senator shall have one
vote. f
^Immediately after they shall he assembled in consequence
of the first election^ they shall he divided as equally as may
be into three classes. The seats of the Senators of the first
class shall be vacated at the expiration of the second year, of
the second clasSy at the expiration of the fourth year^ and of
the third class, at the expiration of the sixth year, so that one-
third may be chosen every second year; and if vacancies
happen by resignation^ or otherwise, during the recess of the
legislature of any State, the executive thereof may make
temporary appointments tmtil the next meeting of the legis-
lature, which shall then fill such vacancies.
The executive of a State cannot appoint a Senator to fill
a vacancy during the recess of the legislature.
Lanman's Case. Clark & H. 871.
^ No person shall be a Senator who shall not have attained
to the age of thirty years, and been nine years a citizen of the
United States, and who shall not, when elected, be an infiabit-
ant of that State for which he shall he cliosen,
A Senator must be a male citizen, ^ and nine years a cit-
izen at the commencement of the term. 2 The State can-
not add to the qualifications prescribed in the Constitu-
tion.' One who was a resident of the United States at tiie
close of the Revolutionary War, and an alien, was not
qualified to sit in the U. S. Senate.^
1 Gallathi's Case, Clark & H. 851.
2 Gallatin's Case, Clark & H. 851 ; Shield's Case, Gont. El. Cas. 1864^
floe.
3 Tnimbull's Case, Cout. El. Cas. 1864^, 618.
4 Gallatin's Case, Clark & H. 851.
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Art. I, § 4 CONGRESS. 48
* The Vice-President of the United States shall he Presi-
dent of the Senate, but shall have no votCy unless they be
equally divided.
* The Senate shall choose their other officers, and also a
President pro tempore, in the absence of the Vice-President,
or when he shall exercise the office of President of the United
States,
« 7%e Senate shall have the sole power to try all impeach-
ments. When sitting for that purpose, they shall be on oath
or affirmation. When the President of the United States is
tried, the Chi^ Justice shall preside. And no person shall
be convicted witfiout the concurrence of two-thii^ qf the
membei^s present.
Form of oath, see Chase's Trial, p. 12.
"* Judgment in cases of impeachment shall not extend fur-
ther than to removal from office, and disqualification to hold
and enjoy any office of honor, trust, or profit under the
United States ; but the party convicted shall nevertheless be
liable and subject to indictment, trial, judgment, and punish-
ment, according to law.
8BOTIOW 4.
Congress.
1. Elections for Senators and Representatives.
2. Sessions of Congress.
Sec. 4. '^The times, places, and manner of holding elections
for Senators and Representatives, shall be prescribed in ea^h
State by the legislature thereof; but the Congress may at any
time by law make or alter such regulations, except as to the
places of choosing Senators.
Elections to Congrass.— When the legislature shall
have failed to prescribe the ** times, places, and manner,**
tiie governor may give notice of the times and places of
elections,^ bat he cannot delegate to another the power to
fix the time.2 When the constitution lixes the day of
election, an act fixing a different day must yield; ' other-
wise as to the place of election.^ The failure of Coneress
to exercise its power in no way impairs the force of the
constitutional grant.^ The State may regulate the elect-
Digitized by LaOOQ IC
49 OONOBESS. Art I § 4
ive franchise, 8 and it is only when discrimination at elec-
tions is made as to race, color, or condition, that Congress
can. interfere.' The act of the Delaware legislature re-
quiring a ballot to contain two names, one not a resident
of the same county with the voter, is constitutional. ^ The
Oregon constitution fixes the time of election of Repre-
sentative beyond the control of the Legislature. ^ A Ter-
ritory is not entitled to a Representative as a State until
admitted, although a constitution has been adopted. i<*
The term of a Delegate expires with the Congress in
which he took his seat.i^ But erecting a Territory into a
State does not necessarily vacate the seat of the Dele-
gate, i^ The failure of a legislature to provide for a va-
cancy or election to fill it, is cured by the governor's proc-
lamation for it. 18 A vacancy by an executive appointed
to the Senate again becomes a vacancy when the State
legislature, subsequent to such appointment, meets and
adjourns without electing, i* Such appointee has a right
to sit till his successor is elected or appointed and pre-
sents his credentials. 15 An election on tne general ticket
is valid, IS and a tie vote is to be determined by Congress
and not by State authorities, i?
1 Hoge*s Case, Clark & H. 135.
2 Graffin's Case, Cont. El. Cas. 1864-5, 464.
3 Sbiel V. Thayer, Cont. £1. Cas. 1864^, 349.
4 Baadwin v. Trowbridge, Const. El. Cas. 1865-71, 46.
5 Qttinn's Case, 12 Int. Rev. Bee. 151. ,
6 Bnrcb's Case, Cent. El. Cas. 1865-71, 205.
7 U. S. V. Beese, 92 XT. S. 218.
8 Latimer v. Patton, 1 Cong. El. Cas. 69.
9 Shiel r. Thayer, 2 Cong. EI. Cas. 349.
10 Conway ». TT. S. 1 Nott & H. 68.
11 Doty V. Jones, 2 Cong. El. Cas. 16.
12 Fearing's Case, 1 Cong. £1. Cas. 127.
13 Hoge's Case, 1 Cong. El. Cas. 349.
14 WUliams' Case, 2 Cong. El. Cas. 612; Phelps' Case, Ibid, 613.
15 Wlnthrop's Case, 2 Cong. El. Cas. 607.
16 Phelps & Cavanangh's Case, 2 Cong. El. Cas. 248; New Hampshire
Case, IbldT 47.
17 Reed & Cosden's Case, 1 Cong. El. Cas. 353.
2 The Congress shall assemble at least once in every year,
and «uch meeting shall be on the first Monday in December,
unless they shall by law appoint a different day.
Desty Fbd. Con.— 5.
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Art. I, § 5 POWERS OF CONGBBSS. 60
SBOTIOir 5.
Powers of Hotues qf Congress.
1. Judges of quaUfications of their own members. Quorum.
2. Bales of proceeding. Expulsions.
S. Journals.
4. Adjournments.
Sec. 5. "^Each House shall he the judge of the elections^
returns J and qualifications of its own members, and a majority
of each shall constitute a quorum to do business; but a
smaller number may adjourn from day to day^ and may be
authorized to compel the attendance of absent members^ in
such manner and under such penalties as each House may
provide.
QualificatioiiB of members.— Whether a Senator has
beeu regularly elected is a question exclusively for the
Senate.^ Members elected for an extra or special session
i only prima facie i
tion.8 A State law requiring votes to be returned within a
certain time is directory only,* and if not so returned
are to be counted, if opportunity is had to count them.^
The refusal of the executive of a State to grant a certifi-
cate of election will not prejudice the right to a seat.<^
The certificate may be followed by another under a
changed condition of the facts. ^ A certificate may issue
on an amended return of votes,8 and a supplementary re-
turn is entitled to be received. ^ The governor may re-
voke the certificate for fraud, i^ One holding a certificate
from the governor of a Territory, given in lieu of a former
certificate superseded for fraud, is entitled to his seat.i^
The territorial government must be in existence before a
Delegate can be admitted.12 A certificate of the governor
of a Territory issued in violation of law is not even prima
facie evidence, is The qualifications of members being ti xed
by the Constitution, additions cannot be required by State
legislation or other acts.i* If the House is unable to de-
cide which of two is entitled to his seat, it must be de-
clared vacant. 2 5 One who was allowed to take his seat
on a prima facie case, but was afterwards ousted by a
competitor rightfully elected, cannot be deemed to have
been a member of Congress. i«
1 Anonymous, 12 Fla. 686.
2 CteUson & Claiborne's Case, 2 Gong. £1. Gas. 9.
•S Ghrisman V. Anderson, 2 Cong. £1. Gas. 328; Spanlding v. Mead, 1
Ibid. 157.
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51 POWERS OF C0N6KES8. Art. I, $^5
4 Brockenborough v. Cabell, 2 Cong. £1. Cas. 79.
5 Richard's Case, 1 Cong. £1. Cas. 95.
6 Richard's Case, Clark & H. 95 ; Clement's Case, Cont. EL Cas.
1864-5,366.
7 Wallace v. Simpson, Cont. El. Cas. 1865-71, 552.
8 Sleeper v. Rice, Cont. £1. Cas. 1864-5, 472.
9 Archer v. Allen, 2 Cong. £1. Cas. 169; Brockenborough r. Cabell,
Ibid. 84. a . -e ,
10 Morton v. Daily, 2 Cong. £1. Cas. 403.
11 Morton v. Daily, 2 Cong. El. Cas. 403.
12 Smith's Case, Cont. El. Cas. 1864^, 109; Babbitt's Case. Ibid. 116 ;
Messervey's Case, Ibid. 146.
13 Colorado Case, Cont. El. Cas. 1865-71, 164.
14 Barney v. McCreery, 1 Cong. El. Cas. 167 ; Tumey r. Marshall, 2
Cong. £1. Cas. 167; Trumbull's Case, Ibid. 618.
15 Letcher v. Moore, 1 Cong. £1. Cas. 715.
16 Bowman v. Coffroth, 59 Pa. St. 19.
2 Each House may determine the rules of its proceedings,
punish its members for disorderly behavior^ and^ with the
concurrence of two-thirds, expel a member.
Rules of its proceedings.— An express power to
make laws was not necessary to enable the legislature to
make them.^ The express grant of power to punish for a
contempt does not exclude the power to punish others
than members of their own body ,2 in secret as in open
session.^ The implied power to punish for contempt shall
not extend beyond \X» known and acknowledged limit of
fine and imprisonment, but the imprisonment must termi-
nate with the adjournment.* The power to punish for
disobedience and contempt is a necessary incident to the
power to require and compel attendance. ^ The warrant
to commit for contempt may be served anywhere within
the boundaries of the United States, <} and it need not set
forth the facts constituting the alleged contempt,'^' the
legislative body being the only judge of its own privileges
and contempts, s A member may be expelled for any mis-
demeanor which, though not punishable by statute, is in-
consistent with the trust and duty of a member. ^
1 McCuUoch V. Mcryland, 4 Wheat. 316.
2 Anderson v. Dunn, 6 Wheat. 204 ; Bolton v. Martin, 1 Dall. 296; No-
gent's Case, 1 Amer. Law J. 139.
3 Xngent's Case, 1 Amer. Law J. 139.
4 Anderson v. Dunn, 6 Wheat. 204.
5 Stewart v. Blaine, 1 McAr. 453; Anderson v. Dunn, 6 Wheat. 204;
Wickelhausen v. Willett, 10 Abb. Pr. 164.
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A
Art. I, § 6 COMPENSATION OP MEMBERS. 52
6 Anderson r. Dunn, 6 Wheat. 204.
7 Ex parte Nugent, 1 Amer. Law J. N. S. 107.
8 Ex parte Nugent, 1 Amer. Law J. N. S. 107.
9 Smith's Case, 1 Hall Law J. 459.
^Each House shall keep a Journal of its proceedings, and
from time to time publish the same, excepting such parts as
mxiy in their judgment require secrecy; arid the yeas and
nays of the Momhers of either House on any question sfuiU,
at the desire of one-fifth of those present, he entered on the
Journal.
Journal.— A journal is a public record, of which courts
may take judicial notice, i The journal cannot be kept
secret unless the proceedings are secret. The holding of
a secret session by either House is in its discretion. 2
1 Brown v. Nash, 1 Wyo. 85.
2 Nugent's Case, 1 Am. L. J. N. S. 139.
^Neither Hov^e, during the session of Congress, shaU,
without the consent of the other, adjourn for more than three
days, nor to any other place than that in which the two Houses
shall he sitting.
Section 6.
Compensation and duties cf members.
1. Compensation of members. Privileges of Senators and Bepresen-
tatives.
2. Ineligibility to United States oflftces.
Sec. 6. ^TTie Senators and Representatives shall receive a
compensation for their services, to he ascertained bylaw, and
paid out of the Treasury of the United States. They shaJl
in all cases, except treason, felony, and breach of the peace,
he privileged from arrest during their attendance at the ses-
sion of their respective Houses, and in going to and returning
from the same ; and for any speech or debate in either House,
they shall not be questioned in any other place.
Privilege from arrest.— Arrest implies corporal re-
straint. ^ The privilege from arrest could not be surren-
dered without endangering the public as well as the
private independence of the member. 2 It extends to ju-
aicial as well as mesne process, and a person arrested is
entitled to his discharge on the privilege afterwards
acquired, 8 but there is no privilege from the service or
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63 iNELiaxBiLiTiEs. Art. I, § 6
obligation of a subpoena in a criminal case.^ It applies to
a delegate from a Territory as well as to a member from
a State.* One who goes to Washington duly commis-
sioned is privileged, though it be subsequently decided by
Congress that he is not entitled to a seat.^ The privilege
is to be taken strictly, and be allowed only during attend-
ance on Congress, or while actually on the journey to or
from the seat of Government.*^ It is limited to a conven-
ient and reasonable time in addition to the actual session. «
Members are privileged not only from arrest, but als(i
from a service of summons or other civil process while in
attendance on their public duties.^ The privilege applies
to speech or debate in either House, i<* but does not cover
its publication by a member, ^i
1 Wooley V. Butler, 1 Bank. L. T. 35.
2 Bolton V. Martin, 1 Dall. 296; Coffin t;. Coffin, 4 Mass. I.
3 Cox V. McClenachan, 3 DaU. 478; Kones v. Edsall, 1 WaU. Jr. 189.
4 TJ. S. V. Cooper, 4 Dall. 341.
5 Doty V. Strong, 1 Plnney, Wis. 88.
6 Duntou V. Halstead, 4 Pa. L. J. 237.
7 Lewis V. Elmendorf, 2 Johns. Cas. 222; McCuUoch v. Maryland, 4
Wheat. 316.
8 Hoppln V. Jenckes, 8 R. 1. 453.
9 Coxe r. McClenachan, 3 Dall. 478; Goyer v. Irwin, 4 Dall. 107;
Nones v. EdsaU, 1 Wall. Jr. 191.
10 Anderson v. Dunn, 6 Wheat. 216.
11 Coffin V. Coffin, 4 Mass. 1.
2 1^0 Senator or Representative shad, during the time for
which he was elected^ be appointed to any civil office under the
authority of the United States, which shall have been created,
or the emoluments whereof shall have been increased during
tvjch time ; and rvo person holding any office under the United
States, shall be a member of either House during his continu-
ance in office. '
Incompatible offices. — The appointment to a second
incompatible office is not absolutely void, but the lirst
office is ipso facto vacated. ^ The acceptance by a member
of any office under the United States after a member has
taken his seat, operates as a forfeiture of his seat,'-^ but
continuance in an office after election to Congress, and
until taking his seat, is not a disqualification if a resigna-
tion is made prior to taking his seat.s The acceptance of
a military appointment vacates the seat.^ A person hold-
Digitized by LaOOQ IC
Art. I, § 7 ENACTMENT OP LAWS. 54
ing two compatible offices is not precluded from receivinjf
the salaries of both.^
1 People V. Carrique, 2 Hill, 93; Biencourt v. Parker, 27 Tex. 558.
2 Van Ness' Case, Clark & H. 122.
3 Hammond v. Herrlck, Clark & H. 287; Earle's Case, Ibid. 314:
Momford's Case, Ibid. 316.
4 Baker's Case, Cont. £1. Cas. 1864^, 92; Yell's Case, Ibid. 94; Byin?-
ton V. Van Lever, Ibid. 395; Stanton v. Lane, 2 Ibid. 637.
5 Converse v. U. S. 21 How. 463; Brown's Case, 9 Opin. Att. Gen. 508.
Section 7.
Enactment of lares
1. Revenue bills. Where to originate.
2. Manner of passage. How passed without President's approval.
3. Orders, resolutions, and votes. President's approval.
Sec. 7. ^All bills for raising revenue shall originate in the
House of Representatives ; hut the Senate may propose or
concur with amendments as on other bills.
Revenue.— The House has the sole power to originate
biUs for taxation.^ A bill establishing rates of postage
is not a bill for raising revenue.^
1 S. & V. R. R. Co. V. Stockton, 41 Cal. 166.
2 U. S. t». James, 13 Blatchf. 207.
^ Every bill which shall have passed the House of Represenr
tatives and the Senate shall, before it become a law, be pre-
sented to the President of the United States ; if fie approve
he shall sign it, but if not he shall return it, with his objeo-
tionSy to that House in which it shall have originated, who
shall enter the objections at large on their Journal^ and pro*
ceed to reconsider it. Jf^ after such reconsideration, two-
thirds of that House shall agree to pass the bill, it shall he
sent J together with the objections, to the other* House, by which
it shall likewise he reconsidered, and if approved by two-thirds
of that House, it shall become a law. But in all such ca^es
the votes of both Houses shall be determined by yeas and nays,
and the names of the persons voting for and against the oiU
shall be entered on the Journal of each House respectively.
If any bill shall not be returned by the President within ten
days {Sundays excepted) after it shall have been presented to
him, the same shall be a law, in like manner as if lie had
signed it, unless the Congress by their ac(joumm£nt prevent,
its return, in which case it shall not be a law.
Digitized by LaOOQ IC
55 ENAC3TMENT OF LAWS. * Art. I, § 7
Course of proceeding by which a bill becomes a
law.i The President must receive the bill ten entire days
before adjournment, or it will not become a law.^ If the
President approves the bill he shall sign it ; he need not
indorse on the bill the word "approved," nor need he
date it.8 A bill becomes a law eitJier by the signing of
the bill by the President, or by his retaining it for ten days
without s^^ning.4 Every bill approved by the President
takes effect as a law only by such approval and from the
time of such approval ;** but the legislature may prescribe
the very moment, in the future, after the approval, when
the law shall take effect,^ and when no time is fixed, it
takes effect from its date.^ As to when a law takes effect,
there are no pal-ts or divisions of a day.s but fractions of
a day may be allowed when substantial justice requires
it/*^ In case cf doubt the time should be construed favor-
ably to the citizens. 1" An act compared by the proper
officer, approved by the President, and enrolled in the
Department of State, cannot afterwards be impugned by
evidence to alter or contradict it.^i Courts take judicial
notice of a general statute — it is not to be proved as an
issue of fact.i^
1 McCuUocli V. Maryland, 4 Wheat. 412.
2 Hyde ». White, 24 Tex. 145.
3 Gardner r. Collector, 6 Wall. 499.
4 Gardner r. Collector, 6 Wall. 499.
.5 In re Richardson, 2 Story, 571. And see Gardner v. Collecror, 6
Wall. 439.
6 Inre Jilohardson, 2Story,571.
7 Matthews v. Zane, 7 Wheat. 164; In re Ankrlm, 3 McLean, 285;
"Warren Manuf. Co. p. Etna Ins. Co., 2 Paine, 601.
8 Matt, of Wellman, 20 Vt. 661; Arnold v. U. S., 9 Cranch, 119; 1 GalL
348.
9 In re Wynne, 1 Chase, 227 ; 4 Bank Reg. 5; In re Ankrlm, 3 McLean,
285; In re Richardson, 3 Story, 571. But see V.S.v. Williams, IPaine,
261 ; Wellman's Case, 20 Vt. 661 ; In re Howes, 21 Vt. 619.
10 In re Richardson, 2 Story, 571.
11 Thompsons' Case, 9 Op. Att. Gen. 3.
12 Gardner v. Collector, 6 Wall. 499.
3 Every order, resolution, or vote to which the concurrence of
the Senate and House of Representatives may he necessaiy
{except on a question of adjournment) shall he. presented to
the President of the United States; and before the same shaU
take effect, shall he approved by him, or, being disapproved by
him, shall be repassed by two-thirds of the Senate and House
Digitized by LaOOQ IC
Art. I, § 8 . POWERS OF CONGRESS. 56
of Representatioes, according to the rules and limitations
prescribed in the case of a bill.
Construction.— This clause does not apply to a pro-
I>osal for amendment to the Constitution.^ A joint res-
olution approved by the President, or duly passed -with
his approval, has the effect of a law. 2
1 HoUingsworth t>. Virginia, 3 DaU. 378.
2 Resolutions of Congress, 6 Op. Att. Gen. 680.
Sbction 8.
Powers of Congress.
1. Taxes, duties, etc. Common defense and general welfare.
2. To borrow money.
3. To regulate commerce.
i. Naturalization. Bankruptcies.
5. Coining money. Weights and measures.
6. Punishment of counterfeiting.
7. Post-offices and post-roads.
8. Patents and cop>Tights.
9. Courts.
10. Piracy and other offenses.
11. To declare war, etc
12. Baising army.
18. Navy.
14. Army and navy regulations.
15. Militia. Insurrections, etc.
16. Organizing, arming, and disciplining militia.
17. Exclusive legislative power over seat of Government, forts, etc.
18. To make laws necessary to carry powers into effect.
Sec. 8. ir/ie Congress shall have power to lay and collect
taxes, duties, imposts and excises, to pay the debts and pro-
vide for the common defense and general welfare of the
United States ; but all dutieSj imposts and excises shall be
uniform throughout the United States.
Legislative powers.— Powers actually granted must
be such as are expressly given, or given by necessary im-
plication. 1 The existence of a power should not be denied
because it may be abused by its exercise, nor sliould it be
presumed that abuses will take place. ^ Legislative pow-
ers must be construed and applied with reference to the
purposes for whicli the Constitution was made,^ and when
the general purpose of the instrument is ascertained, the
language is to be construed, as far as possible, as subserv-
ient to that purpose.'^ Tliey are to be exercised in discre-
tion. ^ Tlie question of power does not depend on degree
to wliich it may be exercised. ^ The existence of a power
may be fairly deduced from more than one of tlie sub-
stantive powers expressly defined upon tliem all com-
Digitized by LaOOQ IC
57 povnms of conqbess Art. I, § 8
bined.8 The pbwers conferred upon Consress mast be
regarded as relative to each other, and all means for a
common end.^ The exception from a power marks its
existence.^ When Congress have the power to do the
same act by virtue of distinct powers, they may exercise
which they please; and when they profess to act under
one power tnere is no necessity to resort to another.^*
No power in itself substantive can be exercised or con-
travened by action under an incidental power. 'i Al-
though Congress cannot enable a State to legislate, it
may adopt State legislation. 12 'W'ith respect to subjects
of ^legislation either expressly or impliedly delegated.
Congress possesses an omnipotence equal to that of any
other supreme legislative body, ^^ and no distinction can
be made between the nature of the power and the nature
of the subject on which that power may operate. 1* The
Constitution does not forbid Congress to pass laws impair-
ing the obligations of contracts, i^ An act of Congress
passed for the purpose of impairing the obligation of a
contract would be void; but it the primary object of the
act is within any of its granted powers it is valid. ^^ Con-
gress may consent to a second trial of a claim against the
United States, although judgment thereon has oeen ren-
dered in favor of the Government. i"*
1 Martin v. Hunter, 1 Wheat. 326; 7 Crancli, 727.
3 Kneedler v. Lane, 45 Pa. St. 238; Metropolitan Bank v. Van Dyck,
27 N. Y. 400.
3 McCall V. McDowell, Deady, 254; 1 Abb. U. S. 212.
4 Shollenberger t;. Brtnton, 52 Pa. St. 9.
5 Martin v. Hunter, 1 Wheat. 326; 7 Cranch, 727.
6 Brown ». Maryland, 12 Wheat. 419 ; Martin v. Hunter, 1 Wheat. 326;
7 Cranch, 727; Metropolitan Bank v. Van Dyck, 27 N. Y. 400.
7 JjGgal Tender Cases, 12 Wall. 457; 11 Wall. 682.
8 Legal Tender Cases, 12 WaU. 457; 11 Wall. 682.
9 Gibbons v. Ogden, 9 Wheat. 1.
10 N. R. Steamboat Co. v. Livingston, 3 Cowen, 713; Thayer v
Hedges, 23 Ind. 141 ; Schollenberger v. Brlnton, 52 Pa. St. 9.
11 Thayer v. Hedges, 23 Ind. 141.
12 Gibbons v. Ogden, 9 Wheat. 1.
13 Metropol^n Bank v. Van Dyck, 27 N. Y. 400.
14 Cooley V. Portwardens, 12 How. 299.
15 Satterlee v. Matthewson, 2 Peters, 380: Legal Tender Cases, 12
Wall. 457; In re Smith, 8 Bank. Keg. 407; 5 McLean, 158; Evans v. Eaton,
Peters C. C. 322.
16 Evans v. Eaton, 3 Wheat. 356; 7 Wheat. 356; Peters C. C. 322; Legal
Tender Cases, 12 Wall. 457; Bloomer v. Stolley,5 McLean, 158; Hague
V. Powers, 39 Barb. 427; George v. Concord, 45 N. H. 434; Metropolitan
Bank v. Van Dyck, 27 N. Y. 400; Shollenberger v. Brinton, 62 Pa. St. 9.
17 Nock V. U. S. 2 Ct. CI. 451.
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF OONaBESS. SS
Taxation is an incident of sovereignty.! It is the act
of laying on a tax, or imposing burdens or charges on per-
sons or property,^ and attaches on all persons $uid prop-
erty within the jurisdiction. 8 The power is necessarily
co-extensive with the territory of the United States, oper-
ating on all persons belonging to the body politic,* and
applicable to the utmost extent. ^ It is an express grant
to Congress,** supreme and independent of State control,^
the only limitation being that ''duties, imposts, and ex-
cises" shall be " uniform." » "Duties" and '* imposts"
are synonymous, and exclusively refer to articles imported
from foreign countries. ^ " Uniform " means the same du-
ties at all ports in the States and Territories, and that in-
come taxes and excises sliall operate alike, including the
District of Columbia.i<> The power of taxation includes
the power to enact internal revenue laws." The taxing
power cannot be invoked in aid of enterprises strictly pri-
vate,i2 nor for those purposes which are within the exclu-
sive power of the individual States.is The words "wel-
fare of the United States" do not authorize the taxa-
tion of means necessary for the exercise of State govern-
ments; i* so Congress cannot tax the revenues of a munici-
pal corporation, ifi nor impose an income tax on the sala-
ries of State officers,i6 nor require a revenue stamp on
process in State courts, i" but it may impose a succession
tax. 18 Congress may adopt any appropriate means for
carrying these powers into effect, as, to build custom-
houses, employ revenue cutters, appoint collectors and
other officers, take official bonds, establish needful bu-
reaus, prescribe time and manner of pay^ment, rent or
build warehouses, define crimes and their punishment,
and provide for their prosecution. ^^ Congress may im-
pose a tax on the salaries of civil officers, except those
whom Congress has no constitutional power to tax. 20 It
has general power to impose a tax on business such as
distilling, and impose penalties and forfeitures.21
1 Dobbins v. Commissioners of Erie Go. 16 Peters, 435.
2 Knowlton v. Rock Co. 9 Wis. 418.
3 Dobbins v. Commissioners of Erie Co. 16 Peters, 485.
4 Providence Bank v. BilUngs, 4 Peters, 514.
5 McCuUoch V. Maryland, 4 Wlieat. 316 ; S. & V. B. B. Co. v. Stock-
ton, 41 Cal. 166.
6 McCulloch V. Maryland, 4 Wheat. 316.
7 Ableman v. Booth, 21 How. 516; Ward «. Maryland, 12 Wall. 427.
8 Hylton V. U. S. 3 Dall. 171 ; Gibbons v. Ogden, 9 Wheat. 199; Li-
cense Tax Cases, 5 Wall. 462 ; U. S. v. Singer, 15 WaU. Ill; Scholey v.
Bew, 23 Wall. 348; Attorney-General v. Winnebago L. & F. P. B. Go. U
Digitized by LaOOQ IC
59 POWBBS OF CONGRESS. Art. I, § 8
Wis. 85: Veazle Bank o. Fenno, 8 Wall. S33; Say. A L. Soci. v. Austin,
46 CaL 477; People r. Reynolds, 10 Bl. 12; People v. Salomon, 51 111. 54.
9 Hylton v. V. 8. 3 Dall. 177; U. S. v. Tappan. 11 Wheat. 419; Wood-
ruff vTParliam, h WaU. 123; Hlnson v. Lott, 8 Wall. 148.
10 Loughborough v. Blake, 5 Wheat. 317. See U. S. v. BUey, 5 Blatchf .
11 Matt of Meador, 1 Abb. U. S. 334.
12 Loan Asso. v. Topeka, 20 Wall. 663; In re Mayor of N. T. 11 Johns.
80 : Broadhead v. Milwaukee, 19 Wis. 624; Stockton & Y. R. R. Go. v.
Stockton, 41 Cal. 173.
13 Gibbons v. Ogden, 9 Wheat. 199.
14 Collector v. Day, 11 Wall. 125 ; U. S. v. RaUroad Co. 17 Wall. 322;
Sweatt V. Boston &c. B. R. Co. 5 Bank. Reg. 248.
15 U. S. V. RaUroad Co. 17 WaU. 334.
16 Dobbinn V. Commrs. Erie Co. 16 Pet. 435 : Freedmau v. Slgel, 10
Blatchf. 330 ; CoUector v. Day, 11 WaU. 125 ; Legal Tender Cases, 12
WaU. 457.
17 Fifipld V. Close, 15 Mtch. 505 ; Tucker v. Potter, 85 Conn. 46.
18 St^holey v. Rew, 23 WaU. 331.
19 U. S. V. Rhodes. 1 Abb. U. S. 49.
20 T9iX on Sahules, 13 Op. Att. Gen. 161.
21 U . S. r . McKlnley , 4 Brewst. 246.
State power of taxation.— By the Bevolution the
powers 01 Government devolved upon the people of the
United States. ^ The power of taxation herein conferred
djoes not operate as a prohibition on the States, it is a
power concurrent in the National and State Governments.^
The taxing power of the State is an attribute of sover-
eignty, and exists independent of the Constitution of the
United States.^ The power is supreme, unless the sub-
ject be beyond the borders of the State, or as to property
within the State, but ceded to the United States, and
within their separate and exclusive jurisdiction, and this
supremacy cannot be questioned by the judiciary.'* Ex-
cept as restricted by the Constitution, States have full
power of taxation over all subjects,'* and over aliens
equally with citizens.* States are only excluded from
taxation of the means and instruments employed by the
General Government in the exercise of its functions, ^ or
the instruments, emoluments, or persons, and the neces-
sary and proper means to execute its sovereign power,<>
but though these are exempt, yet the States may tax the
property of Government agents.^ A State cannot tax
United States property witnin its limits, ^^ nor the com-
pensation of a United States officer ;^^ but a State may
tax the salary of a post-office clerk," So, a party who
obtains a license to trade from the Government is not an
oflQcer.18 A State cannot tax public moneys devoted to
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF CONOBBSS. 60
its appropriate purposes,^* nor money in the treasury, nor
precious metals in the mint, nor the lots, structures, ships,
materials of war, or other property devoted to the pablic
purposes of the United States,i5 nor can it tax internal
^revenue stamps.i^ These exemptions depend upon the
effect of the tax, whether it will Binder the efficient exer-
cise of the powers of the Government, i? but not to a tax
which only remotely affects the efficient exercise of the
powers of the Government, is To make a tax void the
absence of all possible public interest must be clear and
palpable.19 A State may levy a tax to pay the commuta-
tion of persons drafted into the military service,2o or to
pay bounties to volunteers. 21 So, a State may tax shares
of a railroad to which Congress has extended aid, or
may tax the gross receipts of railroads,^* and may pro-
vide for collecting taxes in gold or silver only.^fi
1 McCulloch V. Maryland, 4 Wheat. 316: Dartmouth Coll. v. Wood-
ward, 4 Wheat. 518; Green v. Biddle, 8 Wheat. 1; Ogden v. Saunders,
12 Wheat. 213; Cherokee Nation D. Georgia, 5 Peters, 47.
2 Passenger Cases, 7 How. 571 ; Perveer v. Comm., 5 Wall. 475; Ham-
ilton Comp. Mississippi, 6 Wall. 639; Sweatt v. Boston &c. B. B. Co., 5
Bank. Beg. 248; Van Allen v. Assessors, 3 Wall. 585.
3 McCulloch V. Maryland, 4 Wheat. 316; Lane Co. v. Oregon, 9 Wall.
H; Bailroad Co. v. Peniston, 18 Wall. 29; Nathan v. Louisiana, 8 How.
73; People v. Coleman, 4 Cal. 46.
4 McCulloch V. Maryland, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat.
199; 17 Johns. 488; 4 Johns. Ch. 150; People v. New York, 2 Black, 620;
2 wall. 200: 3 Id. 573; Passenger Cases, 7 How. 538: Ward v. Maryland,
12 Wall. 427; Pullan v. Kinslnger, 2 Abb. U. S. 112; U. S.tJ. Ames, f
Wood. & M. 76 ; Bussell v. N. Y., 2 Denis, 461; State Treasurer v. Wright,
28 111. 509; People v. Hawley, 3 Mich. 330; Fifleld v. Close, 16 Mich. 605:
People V. Mayor &c. of Brooklyn, 4 N. Y. 425; Scovll v. Cleveland,,!
Ohio St. 126; Maloy v. Marietta, 11 Id. 638; Weister v. Hade, 52 Pa. St.
474; Armington v. Bamet, 15 Vt. 749; Mayor &c;v. Lord, 18 Wend. 126.
6 Fratz's Appeal, 52 Pa. St. 367.
7 McCulloch V. Maryland, 4 Wheat. 316; Van Allen v. Assessors, 3
Wall. 685; Austin v. Aide men, 7 Wall. 699; Banks v. Mayor, 7 WalL 16:
Hamilton Comp. v. Massachusetts, 6 Wall. 639; Dobbins v. Gommrs. 01
Digitized by LaOOQ IC
61 POWERS OF CONGRESS. Art. I, § 8
Erie Co. 16 Peters, 435; People r. Commrs. of Taxes, 4 Wall. 244; 35 N.
T. 423; Osbom v. Bank of U. S. 9 Wiieat. 738.
8 Bobbins t;. Commrs. of Erie Co. 16 Peters, 435; 7 Watts, 513.
9 Railroad Co. v. Peniston, 18 Wall. 5.
10 Anonymous, OOpin. Att. Gen. 291.
11 Dobbins v. ConunLssioners, 16 Peters, 435; 7 Watts, 513.
12 Melcher ts Boston, 50 Mass. 73.
13 State V. Bell, PhUl. (N. C.) 76.
14 Comm. v. Morrison, 2 A. K. Marsh. 75.
15 City 17. ChurchiU, 33 N. Y. 693; 43 Barb. 550.
16 Palfrey v. Boston, 101 Mass. 320.
17 Railroad Co. v. Peniston, 18 Wall. 5; National Bank v. Comm. 9
WalL 353; Waite v. Dowley, 9 Ch. L. N. 263; Dobbins t;. Commrj. 16
Peters, 435; 7 Watts, 513.
18 Railroad Co. v. Peniston, 18 WaU. 5.
19 Brodbead v. Milwaukee, 19 Wis. 624; Stockton & V. R. R. Co. r.
Stockton, 41 Cal. 173; Schenley t;. Alleghany, 25 Pa. St. 128.
20 Freeland v. Hastings, 10 Allen, 570; Wagner v. Collector, 31 N. J.
190.
21 Booth V. Woodbury, 32 Conn. 118; Coffman v. Kelghtley, 24_Ind.
M9; Board v. i^earss, 25 Ind. 110; Winchester v. Corrinn.*, 55 Mfj. 9;
Comer v. Folsom, 13 Minn. 219; Wilson v. iiruckman, 13 Minn. 441;
State V. Jackson, 31 N. J. 189; State v. Demarest, 32 N. J. 523; Spccr v.
Directors, 50 Pa. St. 150; Ahl v. Gleim, 52 Pa. St. 432. But see Ferguson
v. Landram, 1 Bush, 548.
22 Woodruff t>. Parham, 8 Wall. 123.
23 State Treasurer v. Wright, 28 111. 509 ; Whiteaker v. Haley, 2 Or. 128.
22b borrow money on the credit of the United States.
The i>o"wer to borrow includes the power to issue
the requisite securities or evidences of debt for the money
horrowed,^ or for capital and commodities of which money
is the representative,^ and to issue treasury notes under
the various acts of Congress,^ their issue being an ex-
change of credit for money or property.* Congress may
constitutionally authorize the emission of bills of credit,
and by suitable enactments may restrain the circulation,
as money of any notes not issued by itself." In issuing
paper promises to circulate as currency their makers are ih
effect borrowing on the credit of these i)romises.o Money
is gold and silver, or the lawful circulating medium of the
country, including bank-notes.^ "On the credit " author-
izes the issue of bills or notes by the Government to circu-
late as money, without providing for repayment of the
money borrowed at any particular day, or with interest, 8
and to charter national banks, '•> and issue notes intended
to circulate as money. ^^ Congress may restrict the circu-
lation of any notes not issued under its authority. i^
Dbsty Fed. Con.— 3.
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Art. I, § 8 powsBS OF congress. 62
1 Hamilton Comp. v. Massachusetts, 6 Wall. 639; Hague v. Powers,
S9 Barb. 427 : Thayer v. Hedges, 22 lucL 282; Van Husan v, Kanouse, 13
Mich. 303: George v. Concord, 45 N. H. 434; Metropolitan Bank v. Vaa
Dyck, 27 N. Y. 4W.
2 Metropolitan Bank v. Van Dyck, 27 N. Y. 400. •
3 Thomdyke v. U. S. '2 Mason, IS: Pennsylvania Gases, 52 Pa. St. l^
100; Metropolitan Bank v. Van Dyck, 27 N. Y. 400.
4 MetropoUtan Bank v. Van Dyck, 27 X. Y. 400.
5 YeazieBankv. Fenno,8Wall. 533.
6 MetropoUtan Bank v. Van Dyck, 27 N. Y. 400.
7 Mann v. Mann, 1 Johns. Ch. 236.
8 Metropolitan Bank v. Van Dyck, 27 N. Y. 400.
McGulloch V. Maryland, 5 Wheat. 316 ; Osbom v. Bank of U. S. 9
Wheat. 738; Weston v. Charleston, 2 Pet. 449.
10 Bank v. Supervisors, 7 Wall. 26.
11 Veazie Bank v. Fenno, 8 Wall. 533.
Legal tenders. — There is no express grant of power
to make a credit currency a legal tender in payment of
debts;! but the authority is necessarily implied,^ as a
means to the exercise of the functions of government.*
If in the judgment of Congress it be necessary, in order to
enhance the credit of the Government promises, it may
make them a legal tender;* in all but cases excepted by
law,6 it is a necessary incident to sovereignty .« The
power is not subject to mutations, but is the same in
peace or in war.^ The power is not to be resorted to ex-
cept upon extraordinary occasions or public exigencies of
great importance.^ A statute making treasury notes a
legal tender is valid,^ and though they are only the repre-
sentatives of money, i<> they may be made a substitute for
coin.ii The provisions of the act rendering them legal
tender applies to antecedent as well as subsequent con-
tracts, 12 but they are not legal tenders on a contract spe-
cifically pavable in gold and silver coin, is nor as to the
gayment of taxes, but only private debts. 1* A law of
ongress to change the currency in which a contract may
be discharged do^s not impair the obligation of the con-
tract. ^^ A contract may be satisfied by payment of what
is a legal tender at the time the debt falls due.^* The
first legal tender act was in favor of foreign coin.^'
1 Hepburn v. Grlswold, 8 Wall. 603 ; 2 Daval, 29.
2 Lick V. Faulkner, 25 Gal. 404.
3 Banks v. The Mayor, 7 Wall. 16.
4 Wood 0. Buller, 6 Allen, 516; Schoenberger v. Watts, 10 Am. Law
Husenv. Kanouse, 13 Mich. 303; Wamioold v. Schllctlng, 16 Iowa, 243;
Digitized by LaOOQ IC
63 POWFJtS OF CONGBESS. Art. I, § 8
Rlddlesbarror r. McDanlei, 38 Mo. 138; Verges v. Giboney, Ibid. 458:
Haynard vrNewmau, 1 Nov. 271 ; Metropolitan Bank r. Van Dyck, 27
N. Y. 403; Shollenberger v. Brlnton, 62 Pa. St. 100: Carpenter t>. Nortb-
fleld Bank, 3.) Vt. 4); Breltenbacb v. Turner, 18 Wis. 140; Warner p.
Sauk Co. 20 Wis. 4J4.
5 Brown v. Welch, 26 Ind. 116.
6 Van Husen r. Kanouse, 13 Mich. 303; Haynard v. Newman, 1 Ncv.
271: George v. Concord, 45 N. H. 434; Metropolitan Bank v. Van Dyck,
27 N. Y. 4(W; ShoUenberger v. Brlnton, 52 Pa. St. 100.
7 Legal Tender Cases, 12 WaU. 457; 11 WaU. 682.
8 Legal Tender Cases, 12 Wall. 467 ; 11 Wall. 682.
9 Legal Tender Cases, 12 Wall. 457: 11 Wall. 6S2; Dooley i;. Smith, 13
Wall. 604: Bailroad Co. v. Johnson. l5 Wall. 195; Hague v. Powers, 89
Barb. 427; Lick v. Faulkner, 25 Cal. 404; Curiae v. Abadie, 25 CaL 502;
Klerskl v. Matthews, 25 Cal. 591: Latham v. U. S. 1 Ct. CI. 149; 2 Ibid.
673; Jones V. Harker,37 Ga. 503; Black v. Lnsk, 69 HI. 70; 18 Ind. 467;
Thayer ». HedgeSj23 Ind. 141: Hlntrager v. Bates, 18 Iowa, 174; George
V. Concord, 45 N. H. 434: ShoUenberger t*. Brlnton, 52 Pa. St. 100; Mur-
ray V. Gates, 52 Barb. 427.
10 Griswold v. Hepburn, 2 Duval, 46.
11 MetropoUtan Bank v. Van Dyck, 27 N. Y. 426.
12 Metropolitan Bank v. Van Dyck, 27 N. Y. 400; Bodes v. Brouson,
34 N. Y. 649; Legal Tender Cases, 12 Wall. 457, overruling Hepburn v.
OriBWold, 8 Wail. 607. on this point. See Willard v. Tayloe, 8 WalL 557 ;
Jones r. Harker, 37 Ga. 503.
13 Bronson v. Bodes, 7 WaU. 229; Butler v. Horwitz, Ibid. 253; Dew-
ing v. Sears, 11 Wall. 379.
14 Lane Co. v, Oregon, 7 Wall. 81 ; Whitaker v. Haley, 2 Oreg. 129; Hl-
inois V. Wright, 28 lu. 509.
15 Fair V. Marsteller, 2 Cranch, 20; Mason v. Haile, 12 Wheat. 370: U.
S. V. Bobertson, 6 Peters, 644; Metropolitan Bank v. Van Dyck, 27 K. Y.
400.
16 U. S. V. Webster, 2 Ware (Dav.) 48; ShoUenberger p. Brlnton, 52
Pa. St. 46.
17 MetropoUtan Bank t>. Van Dyck, 27 N. Y. 424.
Taxation of securities. — The power to borrow money
includes the power to exempt national securities from State
taxation. 1 So, a State cannot tax stocks issued by the
Cteneral Government for loans .2 This immunity from tax-
ation covers all Government securities, as certificates of
indebtedness,* or United States bonds,* or the income de-
rived from interest paid on United States bonds,6 or for-
eign-held bonds ;<i but a State law imposing a tax on
bonds and stocks of a foreign corporation, owned in the
State, is valid; ^ so, States may tax estates though com-
posed of United States securities, » but not the capital of
a corporation where the capital is invested in stocks or
bonds of the United States. »* Where franchises are taxed
and not property, the capital stock may be taxed, al-
though it consists of United States securities, lo States
cannot tax treasury notes used as currency without per-
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Art. I, § 8 POWERS OP coxaBESs. 64
mission of Congress, ^^ nor money lent and stocks or bonds
received therefor. 12 States cannot tax national banks
nor tlieir notes,i8 but Congress may permit States to tax na-
tional banks. 1* States may tax the shares held by indi-
viduals in a national bank,^^ although its capital may be
invested in bonds of the United States, ^^ but not except
by permission of Congress, i" nor when shares in State
banks are exempt.i'* States may tax the dividends de-
clared to holders of stock of national banks, ^^ or the per-
centage of the deposits of a bank.-^ Congress may sub-
ject the shares of corporation stock of national banks to
State taxation, notwithstanding tlio capital is invested
in national securities, '-^i on the condition tliat it tax the
shares of banks of its own creation. =^"^
1 Bank of Commerce v. New York, 2 Black, 629; Bank Tax Case.«i, 2
Wall. 200; Van Allen r. Assessors, 3 Wall. 673; People v. Cominlssloners,
4 Wall. 244; 7 Wall. 26; Bradley r. People, 4 Dall. 459; Hamilton Comp.
r. U. S., 6 Wall. 63!); Metropolitan Bank v. Van Dyck, 27 N. Y. 400;
Society for Savings r. Coite, 6 Wall. 604 : Austin v. The Aldennen, 7
Wall. 699; Weston p. Cliarlestou, 2 Pet. 449.
2 Weston V. Charleston, 2 Pet. 449; Harp. 340; Bank v. Commission-
ers, 2 Black. 620; Opinion of Justices, 53 N. H. 634. Contra, People r.
Commissioners, 26 N. Y. 163; 37 Barb. 635.
3 Banks v. Mayor, 7 Wall. 23 ; Banks v. Supervisors, 7 Wall. 26; State
r. Haight, 24 N. J. 128. Contra, People v. Gai'dner, 48 Barb. 608.
4 Chicago t'. Lunt,52 111. 414; Bank v. Commissioners, 2 Black, 620;
Newark City Bank v. Assessor, 30 N. J. 31.
5 Bank of Ky. r. Comni., 9 Bush, 46; Opinion of Justices, 53 N. H.
5:34.
6 Railroad Co. v. Jackson, 7 Wall. 262; Railroad Co. r. Pennsylvania,
1.-) Wall. 300; State Tax on For. Held Bonds. 15 Wall. 325. Contra, Maltby
'V. Reading <S:c. R. R. Co., 52 Pa. St. 140; Susquehanna &c. Can Co. v.
Comm., 72 Pa. St. 72; Delaware R. R. Co. v. Coram., 66 Pa. St. 64; Pitta-
burgh &c. R. R. Co. V. Comm.,(i6 Pa. St. 73; 3 Brewst. 355.
7 People V. Commissioners, 4 Wall. 259; Van Allen i'. Assessors, 3
Wall. 573: Thompson v. Pao. R. R. Co., 9 Wall. 579; Tappan v. Merch.
Bank, 19 Wall. 501 ; Bureau Co. v. Chicago &c. R. R.,44 111. 229; Railroad
Co. «. Penlston, 18 Wall. 6; National Bank v. Commissioners, 9 Wall.
353; Worthlngton v. Sebastian, 25 Ohio St. 1; Great Barriugton t'. Berk-
Shire, 33 Mass. 572; McKen v. Northampton, 49 Pa. St. 519.
8 Strode v. Commonwealth, 52 Pa. St. 181.
9 Bank ». Commissioners, 2 Black, 620; Whitney v. Madison, 23 lud.
331; Interna. Assu. Co. V. Commissioners, 28 Barb. 318; Mech. Bank r.
Bridges, 30 N. J. 112; St. Louis B. & S. Asso. r. Llghtner, 42 Mo. 421.
10 Socletyof Sav. r. Colte, 6 Wall. 594; Provident Inst. v. Ma
chusetts, 6 Wall. 611 ; Hamilton Comp. t?. Massachusetts, 6 Wall. 632.
11 Bank r. Supervisors, 7 Wall. 26; Montgomery Co. v. Elston, 32 Ind.
27; Home v. Green, 52 Miss. 452.
12 Weston v. Charleston, 2 Pet. 449: Bank of Commerce v. New York,
2 Black, 620; Bank Tax Cases, 2 Wall. 200.
13 McCuUoch V. Maryland, 4 Wheat. 316; Osbom v. Bank of U. S., &
Wheat. 738; Bank of Commerce v. New York, 2 Black, 620; Bank Tax
Digitized by LaOOQ IC
65 POW£BS OF CONGBESS. Alt. I, § 8
Cases, 2 Wall. 200; Pittsburgh v. National Bank, 55 Pa. St. 45: Collins «.
Chicago, 4 Blss. 4t2.
14 Van AUen v. Assessors, 3 Wall. 573: 33 N. Y. 161; State v. Halght,
81 N. J. 399: Frazer r. Selbern, 16 Ohio St. 614; Mintzer v. Montgomery,
54 Pa. St. 139; Austin v. Boston, 96 Mass. 359; City v. ChurchlU,l3 Barb.
550; People v. Barton, 44 Barb. 148; People v. Commissioners, 4 WalL
244; 35 N.T.423; National Bank v. Commonwealth, 9 Wall. 353; First
National Bank r. Douglass Co., 3 Dill. 298, 330; Wright v. Stllz, 27 Ind.
338; Hubbard V. Supervisors, 23 Iowa, 130.
15 National Bank v. Comm., 9 Wall. 353; People r. Bradley, 39 HL
130; St. Louis Na. Bank v. Papln, 4 Dill. 29; Bnlow v. Charleston, 1 Nott
& McC. 45; Stetson v. Bangor, 56 Me. 274; State v. Halght, 31 N. J. 399;
State r. Hart, 31 N. J. 434.
16 People V. Commissioners, 4 WaU. 259; Wright v. Stllz, 27 Ind. 238;
St. Louis B. & S. Asso. v. Llghtner, 47 Mo. 421. Contra, Whitney «.
Madison, 23 Ind. 331.
17 People r. Assessors, 44 Barb. 148.
18 Bradley r. People, 4 WaU. 459 ; National Bank r . Comm. 9 Wall. 353.
19 State r. Collector, 2 BaUey, 654.
20 Society of Sav. v. Colte, 6 Wall. 534.
21 McCnlloch r. Maryland, 4 Wheat. 316; Weston v. Charleston, 2 Pet.
449; CoUector v. Day, II Wall. 123; Ward v. Maryland, 12 Wall. 427; Van
Allen V. Assessors, 3 Wall. 593.
22 Llonberger t). Rouse, 9 Wall. 468.
8 To regulate commerce xoith foreign nations, and among the
several States, and with tlie Indian tribes.
Commerce.— Commerce is a unit, every part of which
is indicated by the term.i It refers to trade 2 or traffic,
and exchange of commodities. » It is more, it is inter-
course,-* and includes the buying and selling of exchange.**
It is not limited to the mere buying and selling, but com-
prehends entire commercial intercourse, ^ for the purposes
of trade J whether by land or water, 'J and includes commu-
nication by telegraph, y Transportation is essential to
commerce; ^'^ the transportation of articles of trade from
one State to another ; ^i the transportation for gain or pur-
chase, or exchange of commodities, i'-* or of passengers, ^^
on railroads through the several States, or between the
States, 14 and is co-extensive with the subje«jt to which it
relates ^^ It includes navigation as well as traffic,^" navi-
gation being only one of its elements, i'^ and comprises the
control of all navigable waters accessible from a State
other than that in which they lie,i8 and obstacles or bur-
dens laid on it are regulations of commerce, ^9 and State
statutes imposing the same on interstate commerce are in
conflict.2® A tax on freight taken out of or brought into
a State is invalid. 21 So, a State law laying a distinct tax
on a foreign corporation for transportation of goods in
trains from State to State is unconstitutional. ^^
Digitized by LaOOQ IC
'Art. I, § 8 POWERS OF CONGBBSS. G5
1 Gibbons v. Ogden, 9 Wheat. 1; 17 Johns. 438; 4 Johns. Ch. 190, 175;
Lin Sing r. Washburn, 20 Cal. 534.
2 U. S. ». Bailey, 1 McLean, 234.
S The Daniel Ball, 10 Wall. 557; 1 Brown, 193.
4 McGullorh v. Maryland, 4 Wlieat. 316; Gibbons r. Ogden, 9 Wheat.
1: 17 Johns. 488: 4 Johns. Ch. 150: Groves v. Slaughter, 15 Peters, 449;
Brown v. Maryland, 12 Wheat. 419; U. 8. v. Holliday, 3 WaU. 417;
MltcheU V. Stcelman, 8 Cal. 3(}3; People v. Brooks, 4 Denio, 469; N. B.
Steamboat Co. v. Livingston, 3 Cowen, 713; Moor v. Yeazie, 32 Me. 343:
Corfleld v. Coryell, 4 Wash. C. C. 371.
5 U. S. V. HoUiday, 3 Wall. 417.
6 People V. Brooks, 4 Denio, 469; State «. Del iwaro &c. B. B. Co. 30
N. J. 473.
7 Gibbons v. Ogden, 9 Wheat. 1 ; 17 Johns. 488.
8 State Freight Tax Cas. 15 Wall. 275: Clinton Bridge Case, 10 WaU.
454: 1 Woolw. J50; 16 Am. Law Beg. N. S. 149.
9 West. U. Tel. Co. v, Atlantic & P. T. Co. 5 Nev. 102; Pensacohi TeL
Co. V. W. U. T. Co. 2 Woods, 643.
10 State Freight Tax Cas. 15 Wall. 275 ; Ward v. Maryland, 12 Wall. 418;
Welton V. Mo. Ml U. S. 275; Henderson v. Mayor ftc. 92 U. S. 259; BaU-
road Co. v. Husen, 95 U. S. 473.
11 State Freight Tax Cas. 15 Wall. 275.
12 State Freight Tax Cas. 15 Wall. 275; Welton v. State, 91 U. S. 275;
65 Mo. 288; Passenger Cases, 7 How. 282.
IS People V. Baymond, 34 Cal. 492.
14 Piek V. Chicago &c. B. B. Co. 6 Blss. 182 ; State Freight Tax Cas. 15
Wall. 232.
15 Lin Sing v. Washburn, 20 Cal. 534.
16 McCulloch V. MaryUuid, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat.
1: 17 Johns. 488; 4 Johns. Ch. 150, 175; U. S. v. Coombs, 12 Peters, 72;
Cooley v.Portwardens, 12 How. 319; N. B. Steamboat Co. «. Livingston,
3 Cowen, 713; Passenger Cases, 7 How. 282; 45 Mass. 282; The Wilson r.
U. S. 1 Brock. 423; People t. Brooks, 4 Denio, 469; Chapman o. Miller, 2
Spears, 769; South Carolina v. Greorgia, 03 U. S. 4.
17 Clinton Bridge Case, 10 Wall. 454; Woolw. 150; 16 Am. Law Beg.
N. S. 149.
18 The Thomas Swan, 6 Ben. 45. But not to waters not navigable
streams— Groton v. Hurlburt, 22 Conn. 183.
19 State Freight Tax Cas. 15 Wall. 232; Ward c. Md. 12 Wall. 418,
Welton V. Mo. 91 U. S. 275: Henderson v. N. Y. 92 U. S. 259; Chy Long
V. Freeman, Ibid. 275; Bailroad Co. v. Husen, 95 U. S. 470.
20 Hall V. DeCuir, 95 U. S. 488; Welton v. Missouri, 91 U. S. 282; Coun«
cil Bluffs V. Kansas &c. B. B. Co. 45 Iowa, 338.
21 State Freight Tax Cases, 15 Wall. 232.
22 Erie B. B. Co. ». New Jersey, 2 Vroom, 531.
Power of Congress to reflate.— To regulate means
to establish rules by which it is to be eoverued; ^ to regu-
late the external commerce of the nation, as well as that
among the several States ;* the object of the provision
being to get rid of conflicting commercial interests, and to
effect a union of all the people into one nation.^ '* With
foreign nations " means with citizens and subjects of for-
Digitized by LaOOQ IC
67 POWERS OF CONGRESS. Alt. I, § 8
^SJ^ governments,* and includes all the means by which
it may be carried on, whether by free navigation of waters
of the several States, or by land across them;o and
*' among" may be restricted to that commerce which con-
cerns more than one State.^ The power is complete in
itself, with no limit other than that prescribed,' and may
operate on any and every subject of commerce to which
the legislative discretion may extend, and embraces manu-
factures, bullion, coin, or any other thing, s It authorizes
all appropriate legislation as will secure convenient and
safe navigation of all the waters of the United States,
whether requiring the removal of obstructions, or subject-
ing vessels to inspection laws.^ It may change the cJfian-
nel or outlet of a bay, or may otherwise improve naviga-
tion. i<> The degree and extent of the prohibitions can
only be adjusted by the discretion of the National Gov-
ernment. ^^ It comprehends the control of all navigable
waters accessible from outside the State, 12 with authority
to order their improvement, -s and prevent obstructions on
the navigable waters between the States. ^* as in the erec-
tion of liridges.is It may prevent the obstruction of any
navigable stream which is a means of commerce between
any two or more States,!^ and keep open navigable riv-
ers.^7 The jurisdiction of the General Government ex-
tends so far as is necessary for commercial purposes. as a
law authorizing the building of a bridge is a regulation of
commerce, and within the power conferred on Congress. ^^
A State cannot authorize a material obstruction in a chan-
nel of a navigable tributary of the Mississippi. 20 A State
may improve navigation, and charge a reasonable toll for
such purpose, in the absence of Congressional legisla-
tion, 2a because it is within the reserved police powers of
the State ; 22 but the police powers of a State cannot ob-
struct foreign commerce, or interstate commercej'-^^ and
that which cannot be done directly cannot be done in-
directly .2* The navigable waters of the United States and
of the State distinguished.25 It is within the police power
of a State to authorize the channel of a river to be turned
and straightened to protect from inundation. ^6 A stream
is not navigable unless so for some general and useful
purpose. 27
1 Gibbons v. Ogden, 9 Wheat. 1 ; 17 Johns. 488; 4 Johns. Ch. 150, 175.
2 Brown v. Maryland. 12 Wheat. 419; People v, Huntington. 4 N. T.
Leg. Obs. 187; Passenger Cases. 7 How. 282.
3 Metropolitm Bank v. Van Dyck, 27 N. Y. 508.
4 U. S. V. HolUday, 3 Wall. 417 ; Flannagan v. Philadelphia, 22 Pa. 219.
5 Pennsylvania r. Wheeling &c. Brldcre, 18 How. 421 ; Columbus Ins.
Co. V. Peoria Br. 6 McLean, 70; Coi. Ins. Co. v. Curlenius, Ibid. 209;
Digitized by LaOOQ IC
«Art. I, § 8 POWERS OF CONGRESS. 68
Jolly V. Terre Haute D. Co. 6 McLean, 237: U. S. tj. R. B. Br. Co. IbUL
518; Corfleld v. Coryell, 4 Wash. C. C. 388; Cook v. Peunsylvania, 6 Ana.
LawBeg. a78.
6 Veazie v. Moor, 14 How. 568; Passaic Bridges. 3 Wall. 782; The
Daniel BaU, 10 WaU. 557; I Brown, 193; U. S. v. Dewltt, 9 WaU. 45.
7 Gibbons v. Ogden,9 Wheat. 1; 17 Jolins. 488; Pollard v. Hagan, S
How. 230; Passenger Cases, 7 How. 396; State t>. Kennedy, 19 La. An. 897-
8 U. S. r. Marigold, 9 How. 660.
9 The Daniel Ball, 10 Wall. 557; 1 Brown, 193.
10 Wisconsin v. Duluth, 6 Am. Law Beg. 58 ; Soath Carolina v. Georgia,
93 U. S. 4.
11 U. S. r. The William, 2 Am. L. J. 255.
12 Gibbons v. Ogden, 9 Wheat. 1 ; 17 Johns. 488: Corfleld v. Coryell, 4
Wash. C. C. 371; Gihnan v. Philadelphia, 3 WaU. 713.
13 South Carolina v. Georgia, 93 XJ. S. 4.
14 Works V. Junction B. B. 5 McLean, 426; Bailroad Co. v. BlQhmond,
19 Wall. 684.
15 Pennsylvania v. Wheeling &c. Co. 18 How. 423.
16 Works V. Junction B. B. Co. 5 McLean, 526; Jolly r. Terre Haate
Co. G Ibid. 237 ; Devoe v. Penrose F. B. Co. 3 Am. L. J. 79.
17 U. S. V. New Bedford Br. Co. 1 Wood. & M. 401.
18 Jolly V. Terre Haute Co. 6 McLean, 241; Palmer v. Cuyahoga Co. 3
McLean, 226; Spooner v. McCunnell, 1 McLean, 337; Hogg v. Zanesville
Co. 5 Ohio St. 416.
19 Clinton Bridge Case, Woolw. 160.
20 Columbas Ins. Co. v. Curtenlus, 6 McLean, 219.
21 Wisconsin Eiv. Imp. Co. v. IManson, 43 Wis. 255: Thames Bank v.
Lovell, 18 Conn. 511; Kellogg v. Union Co. 12 Conn. 26; McBeynolds©.
Smallhouse, 8 Bush, 447.
22 Willson v. Blackbird Co. 2 Peters, 245; Gllman v. Philadelphia, 3
Wall. 743.
23 Baih-oad Co. v. Huzen, 95 U. S. 473, disapproving Yeazcl v. Alexan^
der, 53 ni. 254.
24 Wayman r. Southard, 10 Wheat. 1 ; Brown v. Maryland, 12 Wheat.
419; Missouri t?. North, 27 Mo. 479.
25 The MonteUo, 11 Wall. 411.
26 Green v. Swift, 47 Cal. 536.
27 Groton v. Hurl urt, 22 Conn. 186.
What it embraces. — It embraces all instruments by
which commerce may be carried on,i and all the immedi-
ate vehicles and agents, for all purposes 2— vessels, as well
as the articles they bring,« and the persons who conduct
it;* and includes the power to prescribe rules for the
shipping of seamen,^ and for the regulation of seamen in
the merchant service,^ or to regulate contracts, or extin-
guish liens, and the shipping of seamen or navigation of
foreign vessels,"^ or to the regulation and qualification of
pilots 8 — but the passage of acts regulating pilots does not
release pilots from a penalty incurred under a State law.®
Digitized by LaOOQ IC
6D POWERS OF CONGRESS. Ar i. I, § 8
It includes the power to pass a recording act for the se*
curity and protection of persons dealing in vessels. i'^ It
extends to persons as well as to property; n to the regula-
tion of vessels carrying passengers, whether steam or other
vessel; 12 to the passage of laws to encourage immigration,
or for the admission of citizens and subjects of foreign na-
tions; 18 but it confers no power to declare the status of
persons — the power ceases when they arrive.^* It in-
cludes the power to prohibit immigration or the importa-
tion of persons, 15 or the importation of slaves, i<J or to pun-
ish persons who hold or sell slaves imported, i"* It in-
cludes commerce carried on by corporations as well as
individuals, 18 and the power to impose embargoes i-^ and
to punish for crimes on stranded vessels. 20 The power to
regulate commerce includes all the means necessary to
the execution of such power, as the power to build and
maintain light-houses, piers, breakwaters, to employ rev-
enue cutters, cause survey of coasts, rivers, and harbors,
to appoint all necessary officers at home and abroad, and
prescribe their duties and fix terms of office and compen-
sation, and to define and punish crimes relative to com-
merce.2i
1 Welton V. State, 91 U. S. 275; 55 Mo. 288.
2 Mitchell V. Steelman. 8 Cal. 363.
3 The Wilson v. U. S. 1 Brock. 423.
4 Cooley v. Port Wardens, 12 How. 299.
5 The Barque Chusan, 2 Story, 455.
6 Ex parte Tool, 2 Va. Cas. 276.
7 The Barqae Chusan, 2 Story, 455.
8 Cooley v. Port Wardens, 12 How. 299; Ciscov. Roberts, 6 Bosw. 494;
Dryden v. Commonwealth, 16 B. Mon. 598; Edwards v. Panama, 1 Or.
418.
9 Sturgls V. Spofford, 45 N. Y. 446.
10 White's Bank v. Smith, 7 Wall. 646; Blanchard v. The Martha
Washington, 1 Cllflf. 463; Foster v. Chamberlain, 41 Ala. 156; MltcheU v.
Steelman, 8 Cal. 3f^; Shaw v. McCandless, 36 Miss. 296.
11 Lin Sing v. Washburn, 20 Cal. 534.
12 Gibbons v. Ogden, 9 Wat. 1 ; Passenger Cases, 7 How. 282 ; 45 Mass. ;
People V. Raymond, 34 Cal.; Murphy v. North T. Co., 15 Ohio St.
13 Lin Sing v. Washburn, 20 Cal. 534.
14 Lemmon v. People, 20 N. Y. 607 ; 26 Barb. 270.
15 Gibbons v. Ogden, 9 Wheat. 1 ; The Wilson v. U. S., 1 Brock. 423:
Passenger Cases, 7 How. 282; People v. Downer, 7 Cal. 169.
16 U. S. V. Gould, 8 Am. L. Reg. 525; U. S. v. Haun, Id. 663.
17 U. S. V. GoiUd, 8 Am. L. Reg. 525; U. S. v. Haun, Id. 663.
18 Paul V. Virginia, 8 Wall. 168.
19 Gibbons v. Ogden, 9 Wlieat. 1 ; 17 Johns. 488; 4 Johns. Ch. 150, 175;
U. 8. V. The William. 2 Hall's L. J. 272.
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF CONGRESS 70
20 U. S. V. Coombs, 12 Fet'. 72.
21 U. S. V. Coombs, 12 Pet. 72; U. S. t. Holllday, 3 WaU. 407; U. S. v,
Bhodes, 1 Abb. U. 8. SO.
ExclusivenesQ of po'wers of Congress.— The mere
grant of commercial power does not forbid the States
from passing laws to regulate commerce— States have a
concurrent power on this subject.^ Where the regulation
of commerce requires a uniform rule, the power of Con-
gress is exclusive ; but where it requires rules in different
localities, the States may legislate, in the absence of con-
fressional legislation,'^ as in case of the erection of
ridges,^ or dams across navigable streams,* or pilot resf-
ulations,^ or the regulation of fares and freights. ^ It is
for Congress to determine when its full power shall be
brought into activity," and when it legislates the States
are absolutely prohibited from interfering. s Where the
subject is national and admits of only one plan of regula-
tion, the power of Congress is exclusive,^ and no part can
be exercised by the States, i*> as in the regulation of for-
eign commerce and commerce among the States ;ii in such
cases the States c£|,nnot interfere by additional or auxiliary
legislation. 12 The design and object of this grant of power
was to establish uniformity among the several States, and
prevent unjust and invidious distinctions. ^8 A State
statute in conflict with a congressional regulation of com-
merce is unconstitutional. 1* When a statute invades the
domain of legislation belonging exclusively to Congress,
it is void. IS The commercial power is not so exclusive as
to prevent States from enacting laws necessary to internal
police. 18
1 Cooley v. Port Wardens, 12 How. 319; People r. Coleman, 4 CaL 46.
2 Cooley p. Port Wardens, 12 How. 299; Gllman v. Philadelphia, 3
Wall. 713; Ex parte McNeill, 13 Wall. 240; Pound v. Turck, 95 U. S. 4tf2;
Mitcbell V. Steelman. 8 Cai. 363; CrandaU v. Nevada, 6 WalL 35; People
V. C. P. B. B. Co., 43 Cal. 404.
3 Oilman v. Philadelphia, 3 WaU. 713: Clark v. Sohler, 1 Wood. & M.
373; U. S. V. Ames, 1 Wood. & M. 76; U. S. v. New Bedford Bridge, 1
Wood. & M. 603.
4 Wlllson V. Blackbird Br. Co., 2 Pet. 245; Pound v. Turck, 95 U. S.
463.
5 Cooley V. Port Wardens, 12 How. 299.
6 Piek r. Chicago &c. B. B. Co.. 94 V. S. 178; Winona &c. B. B. Co.
V. Blake, 94 U. S. 180.
7 U. S. V. New Bedford Bridge, 1 Wood. & M. 421 : U. S. r. COombs,
12 Pet. 72; N. Y. v. Mlln, 11 Pet. 155; Oilman r. Philadelphia, 3 Wall.
713.
8 Oibbons v. Ogden, 9 Wheat. 219; Brown v. Maryland, 12 Wheat
419; Passenger Cases, 7 How. 283.
9 Cooley v. Port Wardens, 12 How. 299.
Digitized by LaOOQ IC
71 POWERS OF CONGRESS. Art. I, § 8
10 Gibbons v. Qgrlen.O Wbeat. 1; Oroves v. Slaughter, U Pet. 504;
Passenger Cases, 7 How. 283.
1 1 Sherlock v. Ailing, 03 U. S. 90; HaU v. De Cuir, 95 Id. 498: Kailroad
Co. V. Husen, 95 U. 8. 465; N. R. S. Co. v. Livingston, 3 Cow. 13; People
V. Brooks, 4 Den. 469; Council Bluffs &c. B. B. Co., 45 Iowa, 338.
12 The Chusan, 2 Story, 455; Slnnot r. Davenport, 22 How. 227.
13 Veazie v. Moor. 14 How. 568; Welton v. State, 01 U. S. 275.
14 Slnnot v. Davenport, 22 How. 227 ; Blanchard v. The Martha Wash-
ington. 1 Cliff. 473; £x parte Ah Fong, 3 Sawy. 145.
15 Henderson v. The Mayor, 02 U. S. 259.
16 Commrs. of Pilotage v. The Cuba, 28 Ala. 105.
Passengers.— A State cannot impose on shipmasters
burdensome conditions to the landing of passengers,^ nor
can it enforce laws regulating the arrival of passengers
from a foreign port.^ A State law imposing a tax on passen-
gers arriving from a foreign port is unconstitutional and
void. 3 So, a State law to discourage Chinese immigration
Is in violation of this provision.* So, a State law au-
thorizing the seizure and imprisonment of free negroes
brought to the State from abroad, is void.^ So, a tax on
passengers or goods passing through a State is invalid. <^
A tax on passengers leaving a State, though not in con-
flict with this provision, is nevertheless void, as it is in-
consistent with the objects for wliich the Federal Govern-
ment was established, and the rights conferred on the
Government and the people. ^ The extent of the power of
a State to exclude a foreigner is limited to its police pow-
ers. Whatever is bejrond the right of self-defense is ex-
clusively within the jurisdiction of the General Govern-
ment.B
1 Henderson v. Mayor Ac. of N. T. 92 IT. S. 259.
2 Chy Lung v. Freeman, 92 XJ. S. 275.
3 Passenger Gases, 7 How. 349; People «. Basrmond, 34 Cal. 492;
State V. 8. S. Constitution, 42 CaL 589.
4 Lin Sing V. Washburn, 20 Cal. 534.
5 Elkison V. Dellessellne, 2 Whart. Cr. Cas. 56; Anonymous, 1 Opin.
Atty. Qen. 689. But see Anonymous, 2 Opln. Atty. Gen. 426.
6 Pawenger Cases, 7 How. 283: Crandall v. Nevada, 6 Wall. 35. But
see Smith v. Marston, 5 Tex. 432; Indiana v. Am. Express Co. 7 Blss.
227; State Tax on B. Gross Beceipts, 15 Wall. 284: Ballroad Co. v. Ma-
ryland, 21 WaU. 456; Freight Tax Cases, 15 Wall. 232.
7 CrandaU V.Nevada, 6 WaU. 48.
8 In re Ah Fong, 8 Sawy. 145; Passenger Cases, 7 How. 349.
Digitized by LaOOQ IC
Art. I, § 8 POWEBS OF CONGRESS. 72
Police powers of States.— Private interests must be
made subservient to the general interest of the coinnm-
nlty,i CO tho power of States over police regulations is
8n:n-ome.2 A State law intended as a regulation of po-
lice i3 not a regulation of comraerce,8 but the police
power cannot be extended over interstate transportation
of tho subiccta of commerce.* A State may regulate the
position oi vessels in her harbors or rivers,^ or may regu-
lj.te the speed of steamers or railroad trains.^ States
iii:iy i^rohibittho introduction of slaves,'' or exclude pau-
pers, criminals, diseased or infirm persons, and persons
alllicted with contagious diseases, ^ and may exact a bond
t!> indemnify from expense of maintaining passengers
after arrival; ^ but to exclude passengers who are in pos-
session of their faculties, and neither paupers nor crim-
inals, is a, regulation of commerce whicli the State cannot
exercise. ^0 So, a State cannot legislate to prevent the im-
portation of cattle during certain seasons of the year, this
being more than an exercise of its police powers; ^^ but it
may regulate the introduction of game during certain
months : ^'-^ but forbidding the exportation of game, law-
fully killed within the State, is unconstitutional. '^3 A
State may forbid the sale of an illuminating liquid below
a certain standard, ^'^ or regulate the use of explosives and
dangerous oils and substances, ^5 or may remove the
same.iG The police power extends to the protection
of tho lives, limbs, health, comfort, morals, and quiet of
all persons, and the protection of all property in the
State. 17 xiiis clause does not interfere with the rights of
States to enact inspection, quarantine, and health laws,
as well as laws regulating internal commerce, is or com-
merce local in its character, i^ as requiring the master of a
vessel to report the names, ages, and origin of passen-
gers. 20 Inspection laws are not burdens on trade, lior
unjust discriminations, so long as they are reasonable; -^
but a statute requiring vessels to furnish statements of
the name and owner is void as to United States vessels.22
So, a statute relating to the survey of sea-going vessels
is a regulation of commerce, and void .23
1 Slaughter House Cases, 16 Wall. 62; Commonwealth v. Alger, 7
Cush. 84; Taunton v. Taylor, 116 Mass. 254; Watertown v. Mayo, 109
Mass. 315.
2 Slaughter House Cases, 16 Wall. 62; Bartemeyer v. Iowa, 18 Wall.
133.
3 Smith V. Maryland, 18 How. 71; New York v. Mlln, 11 Peters»102.
4 Railroad Co. v. Husen, 95 U. S. 465. Contra, Yeazel v. Altexander, 58
111. 254.
5 Vandsrbilt v. Adams, 7 Cow. 348.
Digitized by LaOOQ IC
73 POWERS OF COXOBESS. Art. I, § 8
6 People V. Jenkins, 1 Hill, 469; Toledo &c. Co. v. Deacon, 63 lU. SI.
7 Groves v. Slaughter, 15 Peters, 443 ; Osbom v. Nicholson, 1 DIIL 296.
8 Passenger Cases, 7 How. 233; Mooro v. Illinois, 14 How. H; State
V. S. S. Constitution, 42 Cal. 578; Lemmon v. People, 20 N. Y. 64)7; 26
Barb. 270.
9 Candler v. Mayor of New York, 1 Wend. 403; State tj. S. S. Consti-
tution, 42 Cal. 578; Henderson v. The Mayor, U2 U. S. 2ii5; Passenger
Cases, 7 How. 572. But see New York v. Staples, 6 Cow. 170.
10 State V. S. S. Constitution. 42 Cal. 578.
11 Railroad Co. v. Husen, 95 U. S. 465; S. C. 6 Am. L. K. 265, denying
Teazel v. Alexander, 58 111. 254; Stevens v. Brown, Ibid. 280; Wilson r.
Kansas C. St. J. & C. B. B. 60 Mo. 184 ; Husen v. Hannilial & St. J. B. B.
Co. 60 Mo. 226: Mercer t>. Kansas C. St. J. & C. B. B. Co. 60 Mo. 3.97:
Chlcswo &c. B. B. Co. V. Gassaway, 71 111. 970; Somerville v. Marks, 66
111.371.
12 State V. Bandolph, 1 Mo. App. 15.
13 State V. Saunders, 19 Kans. 127.
14 Patterson v. Kentucky, 11 Chic. L. N. 183; 7 Am. L. B. 83.
15 Slaughter House Cases, 16 Wall. 36; U. S. v. Dewitt, U Wall. 41.
16 Holmes v. Jennison, 14 Peters, 617.
17 Munn v. Dliuois, 94 U. S. 147 ; Toledo &c. Co. v. Jacksonville. 07 Bl.
87; Ex parte Shrader, 33 Cal. 279; Davis v. Central B. B. Co. 17 Ga. 323.
18 Gibbons v. Ogden, 9 Wheat. 1 ; New York v. Miln, 11 Peters, 102;
Conway r. Taylor. 1 Black, 633; State v. Fosdick, 21 La. An. 256.
19 SUte V. S. S. Constitution, 42 Cal. 578.
20 New York v. Miln, 11 Peters, 131.
21 People V. Harper, 11 Chic. L. N. 191.
22 Sinnot t?. Davenport, 22 How. 227: Foster v. Davenport, 22 How.
244. Contra, Commrs. of Pilotage r. The Cuba, 28 Ala. 185.
23 Foster v. Master Ac. of N. O. 04 U. S. 246.
Internal commerce of State. — A State may ref-
late its own internal commerce; ^ it may grant exclusive
privilege of navigating an unnavigable stream wholly
within the State, on condition of rendering it navigable. =*
States may legislate as to roads, ferries, canals, etc., when
they do not interfere with the free navigation of the wa-
ters of the State, for purposes of interstate commerce ;8
but they cannot p^ss laws imposing a toll on logs and
lumber floating down a stream running into another
State.'* They may regulate the person and thing within
their own jurisdiction, notwithstanding the regulation
may have a bearing on commerce,^ as the erection of
wharves, which are subservient of commerce. o They may
prescribe regulations for warehouses,"^ and flx rates of
charges for storing, handling, and shipping goods, <^ or
pass laws for the regulation of pilots, in the absence of
congressional acts on that subject.^ They may issue char-
ters to bridge, turnpike, and canal comj^anies,^^ and may
grant exclusive rights. ^^ Bridges are in the same cate-
Dbsty Fed. Con.— i'.
Digitized by LaOOQ IC
Art. I, § 8 POWEBS OF CONGBESS. 74
fory with ferries, and are within the State power under
er inspection laws,i2 and although they cannot authorize
obstructions to navigable waters,i3 in the absence of
legislative restrictions, they may bridge an internal navi-
gable river, i* The abridgment of a right, unless in conflict
with the Constitution or laws of the United States, is an
affair between the Government and the State. ^^ States
may authorize the construction of a drawbridge across
navigable streams. i<J The power of Congress to authorize
a bridge across a public river navigable from the sea is
paramount. 17 Not everything which affects commerce
amounts to a regulation of it; is so a State may require
railroads to fix and post up the rates of freight, ^^ or may
fix a maximum rate of charges for transportation,-^ or
may levy a tax on the gross receipts,2i or may impose
conditions in the charter requiring a bonus or portion of
tbe earnings to be paid to the State.22 A State law wliich
prescribes the rates for different classes of railroads is not
in conflict. 23 A corporation is amenable to the police
powers of the State .-^^ and this includes railroad corpora-
tions. 25 It may require roads to be fenced,26 may super-
vise tracks and switches, time trains, regulate rails, the
safety of beams, number of employees, regulate speed,
etc. ;27 or may impose penalties on conductors, and re-
quire stoppage at way stations. ^s
1 Wilson V. Kansas C. St. J. & C. B. R. R. Co. 60 Mo. 184: Pennsji-
vanlav. Wheeling & B. Br. Co., 18 How. 432: The Daniel BaU, 10 Wall.
M7; 1 Brown, 196; The Montello. 11 Wall. 411; Pelk v. Chicago Ac. 94
U. S. 164: Pensacola T. Co. r. Western U. T. Co. 96 U. 8. 1; U. S. r.
New Bedford Bridgs, 1 Wood & M. 410; People t>. Platfc, 17 Johns. 195;
Scott w. Willson, 3 N. H. 321: Canal Comms. v. People, 5 Wend. 448;
People V. Rensselaer & S. R. R. Co. 16 Wend. 113.
2 Veazie ». Moore, 14 How. 568.
3 Corfleld v. CoryeU, 4 Wash. C. C. 371 ; U. S. v. New Bedford Bridge,
1 Wood. & M. 417.
4 Carson River L. Co. v. Patterson, 33 Cal. 334.
5 Passenger Cases, 7 How. 648; Sherlock v. Allinff, 93 U. S. 99; St
Louis V. McCoy, 18 Mo. 238; Lewis v. Bofflnger, 19 Mo. 13: Wilson c.
Kansas C. St. J. &. C. B. R. R. 60 Mo. 198; Wlfllams v. Bk. of Michigan,
7 Wend. 539.
6 Stevens v. Walker, 15 La. Co. 677; The Ann Ryan, 7 Pen. 23.
7 Munn v. Illinois, 94 U. S. 113; Chicago &c. v. Iowa, 94 U. S. 155.
8 Munn v. Illinois, 69 111.80; affirmed, 94 U. S. 113; Chicago &c. r.
Illinois, Ibid. 156.
9 CooleytJ. Port Wardens, 12 How. 299; Gllmau t>. Philadelphia, 3
Wall. 713; Master v. Ward, 14 La. An. 289; Master v. Morgan, Ibid. Sd5.
10 Fletcher v. Peck, 6 Cranch, 87; Piscataqua Br. v. New Haven
Bridge, 7 N. H. 36.
11 Gibbons v. Ogden, 9 Wheat. 19; People ». Babcock, 11 Wend. 686;
North River S. B. Co. v. Livingston, 3 Cow. 733.
Digitized by LaOOQ IC
75 POWEBS OF CONGKESS. Art. If § 8
12 Gilman v. Pblladelphia, 3 WaU. 726 ; People «. Rensselaer A8.1EL.
R. Co. 15 Wend. 113.
13 Pennsylvania v. Wheeling Bridge Co. 13 How. 618.
14 WiUson V. Blackbird C. M. Co. 2 Peters, 250; Sllllman r. Hudson
River Br. Co. 4 Blatchf . 411.
15 Willson V. Blackbird &c. Co. 2 Peters, 245; Woodman v. KU-
bourne Manuf . Co. 1 Abb. U. S. 163.
16 Gibbons v. Ogden, n Wheat. 203 : Pennsylvania v. Wheeling Acl
Bridge Co. 13 How. 607: SilUman v. Hudson River Br. Co. 1 Black.
582 L? Blatchf. 74, 395; Albany Br. Co. 2 WaU. 403; SilUman v. T. W. T.
B. Co. 11 Blatchf. 288; Palmer v Comm'rs. of Cayahoga Co. 3 McLean,
226; Pennf»ylvanla V. Rensselaer & S. R. R. Co. 15 Wend. 113.
17 Smiman ». Hudson River Br. Co. 4 Blatch. 83, 409; N. R. Steam-
boat Co. V. Livingston, 3 Cow. 713; People v. Rensselaer &c. R. R. Co.
15 Wend. 113.
18 Del. R. R. Tax, 18 WaU. 282; South Carolina v. Charleston, 4
Rich. 289; State Tax on R. R. Gross Receipts, 15 WaU. 284.
19 Raih-oad Co. v. Fuller, 17 WaU. 563: State Tax on R. R. Gross
Receipts, 15 WaU. 284 ; Munn v. HUnols, 94 U. S. 135.
20 Ruggles V. People, 1 1 Chic. L. N. 204 ; Ohio &c. R. R. Co. r. McClel-
land. 25 lU. 140; Galena &c. Co. v. Loomls, 13 lU. 548; Galena &c. C«>. r.
Dill, 22 lU. 204: Chicago &c. Co. v. Iowa, 94 U. S. 155; Chicago Ac. Co. v.
Ackley, Ibid. 179.
21 Reading R. R. Co v. Pa. 15 WaU. 284 ; State Tax on Gross Receipts,
15 WaU. 284.
22 RaUroad Co. \. Maryland, 21 WaU. 456.
23 Chicago tfec. R. R. Co. v. Attorney-General, 9 West. Jur. 347.
24 Ruggles V. People, 11 Chic. L. N. 204: Galena &c. R. R. Co. v.
LoomlsTlS 111. 548; Galena &c. R. R. Co. v. DUl, 22 lU. 204; Ohio Ac. R.
R. Co. V. McCleUand, 25 lU. 140.
25 Chicago Ac. R. R. Co. t;. Iowa, 94 U. S. 15!}; Winona Ac. R. R. Co.
V. Bliide, Ibid. 180; Davidson v. State, 4 Tex. Ct. App. 545.
26 Thorpe V. Rutland Ac. R. R. Co. 27 Vt. 140.
27 Thorpe v. Rutland Ac R. R. Co. 27 Vt. 140; Hegeman v. Western
R. R. Co. 16 Barb. 853; Chlcj^fo Ac. Co. v. Reldy, 6S lU. 43; Chicago Ac.
Co. V. Haggerty, 67 111. 113.
28 Davidson v. State, 4 Tex. Ct. App. 545.
State authority over fisheries.— On the BevolutioD
the people of each State became sovereign over the navi-
gable waters and the lands under them within the limits
of the State, ^ with the right of eminent domain over the
same. 3 The title to the soil under tide-waters of newly
acquired territory vests in the State after its admission
into the Union. 8 States may regulate the planting and
growth of oysters within their territorial limits,* and make
laws regulating commerce in them, which will not be re-
pugnant, although the vessel may be enrolled and licensed
as a United States vessel.^* The grant of power in this
clause does not include the control over tisheries ; a State
may protect or regulate all fisheries within its borders.®
The admission of new States gives them the same abso-
Digitized by LaOOQ IC
Art. I, Q 8 POWKJEts of congress. 76
lute rights as other States, notwithstanding the title was
originally in the United States. ^
1 Martin r. WaddeU, 16 Peters, 419; Smith v. Maryland, 18 How. 74:
PoIIarav. Haran, 3 How. 212; Mayor Ac. v. Eslava,9Port. 577; Duval
V. McLoskey, 1 Ala. 708; Kemp v. Thorp, 3 Ala. 291; Pollard v. Files, 3
Ala. 47.
2 Pollard v. H&gaoi, 3 How. 212: Martin v. Waddell, 16 Peters, »7;
Kossell V. Jersey Comp. 15 How. 426.
3 Weber v. Harbor Commrs. 6 Cblc. Leg. N. 408.
4 Smith V. Maryland, 18 How. 71 ; McCready v. Virginia, 94 U. S. 391.
5 Smith V. Maryland, 18 How. 74.
6 Martin v. WaddeU, 16 Peters, 419; U. S. v. Bevans, 3 Wheat. 837;
Passenger Cases, 7 How. 656; Bennett v. Boggs, Bald. 76; The Martha
Anne,01cott,22; Smith v. Maryland, 18 How. 71 ; Dunham v. Lamphlre,
3 Comi. 268; Russell v. Asso. of The Jersey Co. 15 How. 426: Weston v.
Sampson, 8 Cush. 347; Peck v. Lockwood, 5 Day, 22; Arnold v. Mundy.
1 Halst. 1 ; Stuttsnian v. State, 57 Ind. 119: Parker v. Cutler M. Corp. 20
Me. a>3: Corfleld v. Coryell, 4 Wash. C. C. 371; Fleet v. Hegeman. 14
Wend. 42 ; Commonwealth v. Weatherhead, 110 Mass. 175 ; State r.
Hockett, 29 Ind. 302; Gentile v. State, Ibid. 409.
7 Woodman v. KUboume Manuf. Co. 1 Abb. U. S. 164; Pollard v.
Hagau, 3 How. 212; Gibbons v. Ogden, 9 Wheat. 1; Pennsylvania v
WheeUug &c. Br. 18 How. 421 ; Gilman v. Philadelphia, 3 WaiJL 713.
State taxation. — States may impose a license tax
on foreign corporations. i A statute controlling opera-
tions of foreign insurance companies is not a regulation
of commerce ; -^ so, an ordinance imposing a citv tax is not
a violation of the Constitution,^ even though the business
extends beyond the limits of the State; ^ so, a State law
imposing a tax on brolcers dealing in foreign exchange is
not in conflict. 5 Giving a license by a municipal corpora-
tion is not a regulation of commerce. ^ State license acts
are not unconstitutional. "^ A State may levy a tax on bus-
iness and persons within its limits; 8 so it may tax railroad
property and telegraph lines within its limits;^ may tax
{)roiessions, occupations, and trades ;io may regulate and
icense the practice of law.n A tax by a State on its own
corporations, or their property or franchises, is not in con-
flict, ^^ although the capital be invested in shipping. i«
When Congress has not interposed to protect the property
of persons and corporations employed in Go'\^ernment
service from taxation, State taxation is not obnoxious. i*
A tax on water-craft in which goods are sold by retail is
valid, although the goods were brought from another
State. 15
1 Paul r. Virginia, 8 Wall.' 168; Liverpool Ins. Co. v. Massachusetts,
10 Wall. 576; Louisiana v. Lathrop, 10 La. An. 398; Louisiana v. Ogden,
10 La. An. 402; Louisiana v. Fosdlck. 21 La. An. 434.
2 Paul V. Virginia, 8 Wall. 168; Insurance Co. v. New Orleans, 1
Woods, 89; Home Ins. Co. v. Augusta, 93 U. S. 116.
Digitized by LaOOQ IC
77 POWERS OF CONGRESS. Art. I, § 8
3 Home Ins. Co. v. Augusta City, 93 TJ. S. 116.
4 Osborne v. Mobile, 16 Wall. 48-'. And see Home Ins. Co. v. Aujnsta,
93 U. S. 116.
5 Nathan v. Louisiana, 8 How. 73.
6 Chllvers ». People, 11 Mich. 43; People v. Babcock, 11 Wend. 53G.
7 License Cases, 5 How. 504.
8 Nathan v. Louisiana, 8 How. 73.
9 People r. C. P. R. R. Co. 43 Cal. 398; Thompson v. Pacific E. B. 9
Wall. 67y.
10 Nathan v. Louisiana, 8 How. 73: Missouri v. North, 27 Mo. 43C;
Biddle v. Conunon wealth, 13 Scrg. & R. 405.
11 BradweU r. State, 16 WaU. 139; Cohen v. Wright, 22 Cal. 1!;4:
Aikin r. State Board of Health, 11 Chic. L. N. 35.
12 Delaware R. R. Tax Case, 18 WaU. 232.
13 Bemey v. Tax Collector, 2 Bailey, 654; South Carolina v. Charles-
ton, 4 Rich. 289.
14 Lane Co. r. Oregon, 7 Wall. 77; National Bank v. Commonwealth,
9 Wall. 353; Thomson v. Pac. R. R. Co. 9 Wall. 591.
15 Harrison v. Mayor, 1 1 Miss. 581 .
Idcenses.— A license for the sale of goods, if im]X)sed
on all persons engaged in the same business, is not incon-
sistent with this provision ; i but a license tax discriminat-
ing against products of other States is in conflict;'-^ so, a
State cannot impose a license tax on a traveling agent from
other States.*^ Although letters-patent grant exclusive
rights to make and vend, yet the State may regulate the
use of that right as to merely internal commerce or police. ^
Although Congress may regulate licenses to carry on
trade within a State for internal revenue purpos'es, yet
the power of the State to tax, control, or regulate the bus-
iness is not incompatible. s Cities may exercise all powers
constitutionally conferred on them.** Tlie^ United States
licenses will not warrant carrying on a business in viola-
tion of a State law."^ State prohibitory laws are operative
against such licenses; ^ so a license under the internal
Kevenue Act is no bar to an indictment under a State
law.9 A city council regulating the sale of intoxicating
liquors is not unconstitutional ; ^^ so, a city ordinance ex-
acting a license tax for the sale of beer or ale by the cask
brought in for sale is not in confiict.ii The State may
regulate the sale of intoxicating liquors,!^ and require a
license for the same,!' or prohibit the sale altogether. i*
1 Dist. of Col. V. Humason, 2 McArth. 162.
2 Ward V. Maryland. 12 Wheat. 430: Conner v. Elliott, 18 How. 59S;
Woodruff V. Parham, 8 Wall. 123; Welton v. Missouri, 91 U. S. 275;
Missouri v. North, 27 Mo. 464. But see Davis v. Dashiel, Phil. N. C. 114.
3 Welton v. Missouri, 91 U. S. 275; State v. Browning, 62 Mo. 591.
4 Patterson v. Kentucky, 11 Chic. L. N. 183; 7 Am. L. R. 83.
Digitized by LaOOQ IC
Art. I, § 8 POWEBS OF CONQBESS. 78
5 License Tax Cases, fl WaU. 462.
C Logansport v. Seybold, 59 Ind. 225.
7 License Tax Cases, 6 Wall. 470; McGulre v. Commonwealtb, 3
Wall. 387; Pervear v. Commonwealth, 6 Wall. 475.
8 Thurlow V. Massachusetts, 6 How. 504: McGuire v. Common-
wealth, 3 Wall. 387; License Tax Cases, 5 Wall. 462; Pervear v. Com-
monwealth. 5 Wall. 480; Bertholf v. O'Rielly, 18 Am. Law. Reg. N. S.
119; Metropolitan Board of Health v. Barrle, 34 N. Y. 667; State v. Al-
mond, 4 Am. D. B. 533; California v. Coleman, 4 Cal. 467.
9 Pervear t>. Commonwealth, 6 Wall. 480; Commonwealth t>. Owens,
114 Mass. 252.
10 License Tax Cases, 5 How. 624; Downing i'. Alexandria, 10 Wall.
173; Beall v. State, 4 Blackf. 107; Lunt's Case, 6 Me. 412.
11 Downham v. Alexander, 10 Wall. 173. See Huntington r. Chees-
bro, 57 Ind. 74.
12 Bartemeyer t\ Iowa, 18 Wall. 129; Groversville v. Howell. 70 N. Y.
287; O'Dea v. State, 57 Ind. 31.
13 License Cases, 5 How. 504; 13 N. H. 636; State v. Wheeler, 25 Conn.
290; Perdue v. Ellis, 18 Ga. 586; Ingersoll v. Slcinner, 1 Denio,640; Jones
V. People, 14 111. 196; Santo t>. State, 2 Iowa, 165; State v. Donohey, 8
Iowa, 396; Corwinv. Kimball, 41 Mass. 359; Corwin v. Clapp, 71 Mass.
97; Keller r. State, 11 Md.625; State v, Moore, 14 N. H. 451; State v.
Peckham, 3 R. L 289; City v. Ahrens, 4 Strob. 241.
14 Bertholf v. O'Rielly, 18 Am. Law Reg. N. S. 119; Metropolitan
Board of Excise v. Barrle, 34 N. Y. 657; Anderson v. Commonwealth.
13 Bush, 485.
Commerce -with Indians.— Under this power, Con-
gress may prohibit all intercourse with Indians, except
under a license, i or may punish all crimes committed
within the Indian country not within the limits of a
State, 2 or may prohibit traffic in liquors within or with-
out the limits of the State,^ or may prohibit the introduc-
tion of spirituous liquors into a place near an Indian reser-
vation, although within the limits of a State.* The whole
intercourse with Indians is vested by the Constitution in
the United States,^ although carried on within the limits
of a State. 6 Its legislation is in its nature exclusive, and
a plea of acquittal in an Indian court under Indian laws
for an offense punishable under the laws of the United
States is bad."*^ An Indian is not a foreign citizen or sub-
ject,** but he may be a resident alien in a State. ^ In all
intercourse with foreign nations as to commerce, Indians
are considered as within the jurisdictiimal limits of the
United States, i** Indians do not submit themselves to all
the laws of a State because they seek its courts for the
preservation of rights and the redress of wrongs. ^i An
Indian may maintain an action in a State court to enforce
Ills right to the enjoyment of property, real or personal. ^^j
They may file a bill in equity, on behalf of themselves and
the residue of the nation on the reservation, to restrain a
Digitized by LaOOQ IC
79 POWERS OF CONGRESS. Art. I, § 8
trespass on their land.^^ An Indian is liable to be sued
in a State court. i* If an Indian dies before the laws of a
State are extended over the reservation, a State court may-
grant letters of administration on his estate when they are
so extended. 15
1 XJ. S. V. Cisna, 1 McLoan, 254.
2 U. S. V. Rogers, 4 How. 567; Hemp. 450; U. S. v. Cha-to-kah-na-he-
sha. Hemp. 27.
3 IT. S. V. Shaw-Mux, 2 Sawy. 365; U. S. v. Tom, 1 Or. 26.
4 XJ. S. V. Forty-three Gallons, 93 U. S. 188.
5 Worcester v. Georgia, 6 Peters, 515.
6 U. S. V. HolUday, 3 WaU. 417; U. S. v. Forty-three Gallons, 93 U. S.
188.
7 IT. S. V. Ragsdale, Hemp. 497.
8 Karrahoo V. Adams, 1 Dill. 344.
9 Parent v. Walmsley, 20 Ind. 82.
10 U. S. V. Tobacco Fact. 1 Dill. 265; Worcester v. Georgia, 6 Peters,
515: Cherokee Na. v. Geoi^a, 5 Peters, 1 ; Mackey v. Goxe, 18 How. 100;
U. S. V. Rogers, 4 How. 567 ; The Kansas Indians. 5 Wall. 737.
11 The Kansas Indians, 5 Wall. 737.
12 Lobdell V. Hall, 3 Nev. 507.
13 Strong V. Waterman, 11 Paige, 607.
14 Jones v. Elsler, 3 Kan. 134; Murch v. Tomer, 21 Me. 535; Rubl-
deaux v. Vallle, 12 Kau. 28.
15 Brasher v. Williams, 10 Ala. 630. But see, contra, Dole v. Irish, 2
Barb. 639; U. S. v. Shanks. 15 Minn. 369.
Indian tribes. — Congress may exercise its power to
regulate commerce with the Indian tribes to the same ex-
tent as with foreign nations ; ^ but commerce cannot be
held to apply to the ordinary business transactions be-
tween individuals; 2 so, it does not apply to individual
sales of land, but is confined to lands held in common by
tribes; 8 nor can it invalidate a contract between an Indian
and a white man within the limits of a State, and not on
an Indian reservation.* When the Indian Territory is
within the limits of a State, Congress is limited to the
regulation of commercial intercourse with such tribes as
exist as a distinct community, governed by their own
laws, and resting for their protection on the faith of
treaties and laws of the Union.fi If Indians are recog-
nized as tribes by the political department, they will be so
recognized by the courts. <^ The rights of a tribe as against
State laws can only be changed by treaty stipulations or a
voluntary abandonment of their tribal organization. <^ An
Indian tribe within the limits of a State constitutes a dis-
tinct community, in which the laws of the State have no
force, and citizens of the State have no right to enter but
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF CONGRESS. 80
with the assent of the tribe, and in conformity with
treaties and acts of Congress. 8 Congress may regulate
commerce between different tribes, and between individ-
ual Indians, » and may regulate trade between different
tribes as well without as within the Indian country,!* and
over tribes on territory not within the limits of a State. ^
The tribes referred to are those which are in a condition
to determine for themselves with whom they will have
commerce, i-^ Indians on a reservation within a State are
not citizens or members of the body politic, but are con-
sidered as dependent tribes, governed by their own usages
and chiefs. 13 If an Indian leaves his tribe or nation to
take up his abode among white people, he is entitled to
all the rights and privileges which belong to an emigrant
from any foreign people.^* The Indian tribes are herein
distinguished from foreign nations and from the several
States. 15 jjo Indian tribe can by treaty stipulate away
any part of the sovereignty of a State guaranteed to it on
its admission into the Union; i^ nor can it institute a suit
at law in the name of the tribe to recover a reservation
held by them in common.i^ Their right to the use of the
soil can only be divested by the United States.^s
" 1 U. S. u.Cisna, 1 McLean, 254.
2 Hicks V. Euhartonah, 21 Ark. 106.
3 Murray v. Wooden, 17 Wend. 531.
4 Hicks V. Euhartonah, 21 Ark. 108; Taylor v. Drew, 21 Ark. 485.
5 U. S. V. Bailey, 1 McLean, 234; U. S. v. Clsna, 1 McLean, 254; State
r. Foreman, 8 Yerg. 256.
6 U. S. V. Holliday, 3 Wall. 407; The Kansas Indians, 6 Wall. 737.
7 The Kansas Indians, 5 Wall. 737.
8 Worcester v. Georgia, 6 Peters, 515; U. S. v. Clsna, 1 McLean, 254:
Blair v. Pathkiller, 2 Yerg. 407 ; McKay v. Campbell, 2 Sawy. 133.
9 U. S. V. Holliday, 3 Wall. 417; U. S. v. Shaw Mux, 2 Sawy. 364 .
10 U. S. V. Holliday, 3 Wall. 417; U. S. v. Cisna, 1 McLean, 254; V. S.
V. Seveloff , 2 Sawy. 317 .
11 Cherokee Tobacco, 11 Wall. 616; 1 Dill. 264.
12 Moor V. Veazie, 32 Me. 343; 31 Me. 360.
13 Holden v. Joy, 17 Wall. 211; Goodell v. Jackson, 20 Johns. 693;
Jackson v. Wood, 7 Johns. 290; Strong v. Waterman, 11 Paige. fl07.
14 Scott V. Sandf ord. 19 How. 393 .
15 Cherokee Na. v. Georgia, 5 Peters, 1.
16 U. S. V. Forty-three Galls. Whisky, 19 Int. Rev. Rec. 158.
17 Strong v. Waterman, 11 Paige, 607.
18 Godfrey v. Beardsley, 4 McLean, 412; McKay v. Campbell, 3 Sawy.
133.
Digitized by LaOOQ IC
SI FOWKBS OF CONGBESS. Art. I, § 8
Indian laws and customs.— So lon^ as Indians ad-
here to their tribal customs and their affairs are managed
by agents of the Government, they are not subject to
State laws,^ but have a right to regulate their own civil
policy, their property, contracts, relations between hus-
band and wife, and their inheritance.^ Their usages and
customs continue to be their law, although the tribe is on
a reservation within the limits of a State.* They may
adopt a white man or others into their tribe, and after
adoption he is subject to all the burdens and entitled to
all the immunities of a native bom.^ In the management
of their internal concerns the Indians are dependent on
no power.6 a marriage between Indians, valid according
to the usages of the tribe, will be deemed valid every-
where ;<J and the right of dissolution will be considered a
term of the contract, of which either party may take ad-
vantage. "^ A marriage between Indians in a State after
the tribe has removed from it, must conform to the laws
of the State.8 In the absence of proof the presumption
is that in a savage tribe there are no laws regulating
the descent of property, and that property belongs to
the first occupant.^ The liability of an innkeeper on
an Indian reservation within State limits is to be deter-
mined according to the laws of the tribe. ^^ The Cherokee
Territory is a domestic Territory, and its laws and pro-
ceedings stand on the same footing as those of other Terri-
tories.^
1 Boyer v. Dlvely, 53 Mo. 510 : Morgan v. McGhee, 5 Humph. 13 ;
Wall V. WilUams, 11 Ala. 826; 8 Ala. 48.
2 Jones v. Laney , 2 Tex*342 ; Ooodell v. Jackson, 20 Johns. 693 ; Dble
V. Irish, 2 Barb. 639; Boyer v. Dlvely, 53 Mo. 510; Morgan v. McGhee,
5 Humph. 13.
3 Wall V, Williams, 11 Ala. 826 ; 8 Ala. 48 ; Ooodell v. Jackson, 20
Johns. 693.
4 U. S. V. Bagsdale, Hemp. 497.
5 Worcester v. Georgia, 6 Peters, 615.
6 Wall V. Williams, 11 Ala. 826 ; 8 Ala. 43 ; Morgan v. McGhee, 5
Humph. 13; Johnson v. Johnson, 30 Mo. 72; Boyerv. Dlvely, 58 Mo. 510.
7 WaU V. Williams, 11 Ala. 826; 8 Ala. 48.
8 Boche V. Washington, 19 Ind. 53.
9 Brasheart7. Williams, 10 Ala. 630.
10 norland v. Pack, Peck, (Tcnn.) 151.
11 Mackey v. Coxe, 18 How. 100.
4 To establish an uniform rule of naturalization, and uni-
form laws on the subject of bankruptcies throughout tha
United States.
Digitized by LaOOQ IC
Art. I, § 8 powjats of congress. 82
Naturalization is the act of adopting a foreigner and
clothing him with all the privileges of a native citizen.^
It applies to persons of foreign birth only,^ and not to a
free white person 3 born in this country, though of foreign
parents, nor to a freeman of color born in the United
States.* Indians may be naturalized by authority of Con-
gress, like the subjects of any foreign government.^ Races,
tribes, and communities, irrespective of color, have been
admitted in mass by a single act of national sovereignty.^
Allegiance on the one side and protection on the other
constitutes citizenship,? and the record of naturaliza-
tion is evidence thereof.^ Katuralization has a retro-
active effect, as to forfeitures and title.^ The power of
regulating naturalization is exclusive in the Federal GJov-
ernment.io A State cannot make a citizen of the United
States ;ii but a citizen of the United States is a citizen of
the State where he resides, 12 and his rights of citizen-
ship under each government will be different.^s States
may confer the right of citizenship on any one it thinks
proper; but the rights and immunities thereby acquired,
would be restricted to the State which gave them.i* The
power given to Congress was intended to provide a rule
tor the action of the States, and not a rule for the action
of the Federal Government, i^ Congress may lix upon the
class of courts which may be invested with jurisdiction, i^
and no State can confer jurisdiction on any tribunal which
does not come within the terms of the act of Congress ;i~
but a State may prohibit its courts from entertaining pro-
ceedings for naturalization.18 If a State law gives juris-
diction to the courts enumerated in the act of Congress,
they may entertain proceedings for natural ization,!-^ and
Congress may empower them to naturalize aliens, and
give validity to their acts.^o A State cannot superadd
any requisitions before an alien can acquire the privileges
and immunities of a citizen,2i but Congress may deprive
an individual of the opportunity to enjoy a right belong-
ing to him as a State citizen; yet it cannot deprive him
of the right itself .^-^
1 Osborn v. Bank of U. S. 9 Wheat. 827; Right of Expatriation, 9
Op. Att.-Gen. 359.
2 Scott V. Sandford, 19 How. 419; U. 8. v. Rhodes, 1 Abb. U. S. 45:
Lynch v. Clarke, 1 Sand. Ch. 583.
3 Citizenship, 9 Op. Att.-Gen. 374.
4 Smith V. Moody, 26 Ind. 299; Anon. 4 Opin. Att. Gen. 147.
5 Scott V. Sandford, 19 How. 393.
C People V. Washington, 36 Cal. 658. The Treaty of Washington con-
ferred the elective franchise on British subjects resident lu the dis-
puted territory at the time of the Treaty— Opp. Att. Gen. 68 Me. 589.
Digitized by LaOOQ IC
83 POWERS OF CONOBESS. Art. I, § 8
7 Smith V. Moody, 26 Ind. 305.
8 Starkie v. Chesapeake Ids. Co. 7 Cranch. 420; Spratt v. Spiatt, 4
Peters, 393: The Acorn, 2 Abb. U. S. 443; In re Clark. 18 Barbour, 444;
McCarthy v. Marsh, 5 N. Y. 263 ; Bitchle v. Putnam, 13 Wend. 524.
9 Walker v. VUlavaso, 6 Wall. 124; Culverhouse v. Beach, 1 Johns.
Gas. 399.
10 U. S. V. VUlato, 2 Dall. 372; CWrac v. Chh«c. 2 Wheat, 259; Hous-
ton V. Moore, 5 Wheat. 1 ; Oprden v. Saunders, 12 Wheat. 277 ; Passenger
Cases, 7 How. 556: Scott v. Sandford, 19 How. 393; U. S. v. Rhodes, 1
Abb. U. 8. 412; Matthews v. Ray, 3 Cranch. C. C. 699; Golden v. Prince,
3 Wash. C. C. 313: Ex parte Knowles, 5 CaL 300; North Carolina v.
Manuel, 2 Dev. & B. 25; North Carolina v. Newsom, 5 Ired. 253: Lynch
V.Clarke, 1 Sand. Ch. 533; Commonwealth v. Ives, 18 Peck. 193. The
case of Collet v. Collet, 2 Dall. 294, being overruled; but see Crandall
V. Connecticut, 10 Conn. 339.
11 Lanz V. Randall, 4 Dill. 425; 3 Cent. L. J. 688.
12 Gassies v. Ballon, 6 Peters, 761.
13 U. S. V. Cruikshank, 92 U. S. 542.
14 Scott V. Sandford, 19 How. a93; Ex parte Wehlltz, 16 Wis. 443.
15 Ex parte Knowles, 5 Cal. 300.
16 Ex parte Knowles, 5 Cal. 300; Ex parte Beavins, 33 N. H. 89.
17 New Hampshire r. Whlttemorc, 50 N. H. 245.
18 Ex parte Stephens, 70 Mass. 559; Ex parte Beavins, 33 N. H. 89.
19 Ex parte Knowles, 5 Cal. 300; Rump v. Commonwealth, 30 Penn.
475.
20 Morgan v. Dudley, 18 B. Mon. 693; Rump v. Commonwealth, 30
Pa. 475.
21 Commonwealth v. Towles, 6 Leigh, 743. And see Page v. Allen, 58
Pa. St. 338.
22 Huber v. Reily, 53 Pa. St. 112.
Bankruptcy is the stoppage and breaking up of busi-
ness from inability to carry it on. i The word bears a mean-
ing co-extensive with insolvency, and is equivalent to that
word in the Constitution. 2 The American system seems
to have broken up the distinction between bankruptcy
and insolvency .8 It is a condition following upon the
commission of certain acts defined by law.* The word is
employed in the Constitution in the plural, as part of an
expression "subject of bankruptcies," and over this sub-
ject Congress has general jurisdiction.^ The subject of
bankruptcies includes the distribution of the property of
the debtor and his discharge from his contracts and legal
liabilities, as well as incidental matters tending to these
ends.c
1 Stnrges v. Crowninshleld, 4 Wheat. 195 ; Ex parte Breneman,
Crahbe, 465; Arnold v. Maynard, 2 Story, 354.
2 Morse o. Hovey, 1 Barb. Ch. 404; 1 Sand. Ch. 187.
3 Sturges V. Crowninshleld, 4 Wheat. 198.
4 Williamson v, Barrett, 13 How. HI.
Digitized by LaOOQ IC
Art. I, § 8 POWEB8 OF C0NQBE8S. 84
5 In re Klein, 1 How. 277, note; 2 N. T. Leg. Obs. 184; In re Silver-
man, 4 Bank. Reg. 173; 1 Sawy. 410; 2 Abb. U. 8. 243.
6 In re Silverman, 4 Bank. Beg. 173; 1 Sawy. 410; 2 Abb. U. S. 243;
Inre Beiman, 11 Bank. Beg. 21; 13 Ibid. 128; 7 Ben. 4S5; 12 Blatchf. 563.
Uniformity .^To come withia the constitutional pro-
Tision a bankrupt law must be uniform throughout the
United States. ^ It is uniform when the assignee takes in
each State whatever would have been available to execu-
tion creditors.2 The uniformity required is as to the gen-
eral policy and operation of the law, though it may in
some minor particulars operate differently in different
States. 8 Bankrupt laws are uniform when they allow
the exemptions accorded in each State, though the amount
of such exemptions may differ.^
1 Day V. Bardwell. 3 Bank. Beg. 4d5 ; 97 Mass. 246; In re DUlard, 9
Bank. Beg. 8; In re Deckert, 10 Ibid. 1; In re Duerson, 13 Bank. Reg.
183 : In re Shlpinan, 14 Ibid. 570; Bush v. Lester, 55 6a. 579; Kittredge
V. warren, 14 N. H. 509. Contra, In re Kean, 8 Bank. Beg. 367; In re
Smith, Ibid. 401: 6 Gh. L. N. 33; In re Jordan, 10 Bank. Beg. 428; In re
Smith, 14 Ibid. 295.
2 In re Buth, 1 Bank. Beg. Sup. 154; In re Appold, Ibid. 178; In re
Beckerford. 4 Bank. Beg. 59; 1 DiU. 45: In re Jordan, 8 Bank. Reg. 180;
In re Deckert, 10 Bank.^eg. 1; 6 Ch. L. N. 310.
3 In re Jordan, 8 Br.nk. Beg. 180.
4 In re Appold, 16 Am. Law. Beg. 624; 1 Bank. Beg. 621.
Pcwer of Congress.— To the power of Congress on
the subject of bankrui)tcies there is no limitation; it may-
act on the whole subject with plenary discretion. ^ It is
without restriction, save in its uniformity j-^ the power is
general, unlimited, and unrestricted over the subject,8.as
to any particular class of persons,* or whether voluntary
or involuntary.^ .The power of Congress extends to all
cases providing for the distribution of the property of the
debtor, and to nis discharge from his contracts, o although
it is not necessary that a bankrupt law should provide for
the debtor's discharge.' The Constitution does not deny
to Congress the power to infringe vested rights, or to vio-
late the obligation of contracts; » it may release the debtor
from contracts subsisting at the time when the law is
passed,^ but it cannot enable States to give a bankrupt ex-
emption from debts created antecedently to the passage
of the State exemption laws.io Yet it has power to define
what and how much of the debtor's property shall be ex-
empt, ^i and State exemption laws in contiict must yield. *=*
It may pass a law which will make void an assignment
valid under State laws, is The power to enact implies tlio
power to make the law efficient, i* Congress may not only
establish uniform laws on the subject, but may commit
Digitized by LaOOQ IC
85 POWEBS OF COKOBBSS. Art. I, S 8
the execution of the system to such Federal courts as it
may see fit, and prescribe such modes of procedure as
it may deem suitable. ^^ The power of Congress is exclu-
sive only when exercised, ^6 or when States are expressly
prohibited."
1 In re Irwine, 1 Pa. L. J. 82.
2 Kunzler v. Kohans, 5 Hill, 317 ; In re Klein. 1 How. 277; 2 N. T.
Leg. Obs. 184 ; 1 Bank. Beg. 542.
3 In re Silverman, 4 Bank. Reg. 173: 1 Sawy. 410; 2 Abb. U. 8. 243;
In re Belman, 11 Bank. Beg. 21; 13 Ibid. 128; 7 Ben. 455; Thompson v.
Alger, 63 Mass. 428.
4 In re Klein, 1 How. 277; 2 N. Y. Leg. Obs. 184; In re Cal. Pac. R. B.
Co. 11 Bank. Beg. 193; In re Silverman, 4 Ibid. 173; 1 Sawy. 410; 2 Abb.
U. S. 243; Morse o. Hovey, 1 Sand. Gh. 187; 1 Barb. Gh. 404; Kunzler v.
Kobans, 6 Hill. 317.
6 In re Klein, 1 How. 277; 2 N. Y. Leg. Obs. 184; State Bank v. Wil-
bom, 6 Ark. 35: Lalor v. Wattles. S HI. m-, Kunzler r. Kohans, 5 HiU.
317; Loud v. Pierce, 25 Me. 235: Thompson v. Alger, 53 Mass. 428: Dres-
ser V, Brooks, 3 Barb. 429 ; Hastiugs v. Fowler, 2 Ind. 21G ; Beed v.
Vaughan, 16 Mo. 137; Cutter v. Folsom, 17 N. H. 139 ; McGormick v.
Pickering, 4 N. Y. 276; Keen v. Mould, 16 Ohio, 12; Bowan v. Holcomb,
Ibid. 463 ; In re Irwlne, 1 Pa. L. J. 82.
6 In re Klein, 1 How. 28; In re Silverman, 1 Bank. Beg. 173; Kunz-
ler V. Kohans, 5 Hill, 317 ; Sackett v. Andross, 5 Hill, 327 ; McGormick «.
Pickering, 4 N. Y. 282; In re Gal. Pac. B. B. Go. 3 Sawy. 242.
7 In re Gal. Pac. B. B. Co. 11 Bank. Beg. 193; Van Nostrand v. Barr,
2 Bank. Beg. 485; 30 Md. 128.
8 In re Jordan, 8 Bank. Beg. 180: In re Kean, Ibid. 368: In re Smith,
Ibid. 407; Carpenter r. Pennsylvania, 17 How. 463; Legal Tender Cases,
12 Wall. 457; Satterlee v. Matthewson, 2 Peters, 380: Evans o. Eaton,
Peters C. C. 322: Bloomer v. Stolley, 5 McLean, 158; Hague v. Powers,
39 Barb. 458; Watson v. Mercer, 8 Peters, 110 ; In re Everett, 9 Bank.
Reg. 93.
9 Comer v. Miller, 1 Bank. Beg. 99; In re Klein, 1 How. 277, note; 2
N. Y. Leg. Obs. 185; Morse v. Hovey, 1 Barb. Gh. 404; 1 Sand. Gh. 187;
Kmizler v. Kohans, 6 Hill, 317 ; Sackett o. Andross, Ibid. 327; Loud r.
Pierce. 28 Me. 235 ; Keen r. Mould, 16 Ohio, 12; McGormick v. Picker-
ing, 4 N. Y. 276; In re Irwlne, 1 Pa. L. J. 82.
10 Ounn V. Barry, 8 Bank. Beg. 1; In re Dillard, 9 Bank. Beg. 16; In
re Everett. 9 Bank. Beg. 93.
11 In re Reiman, 11 Bank. Beg. 21; 13 Ibid. 128; 7 Ben. 455.
12 In re Brown, 3 Bank. Beg. 61.
13 In re Breneman, Grabbe, 456.
14 BosseU V. Cheatham, 16 Miss. 703.
16 Sherman v. Bingham,5 Bank. Beg. 34 ; 1 Low. 675 : Ooodall v. Tuttle,
7 Bank. Beg. 193; 3 Biss. 219; Mitchell v. Manuf. Co. 2 Story, 648.
16 Ogden V. Saunders, Wheat. 1 ; Passenger Cases, 7 How. 282; Com-
monwealth V. O'Hara, 1 Bank. Beg. Supp.20; In re Brown. 3 Bank.
Reg. 61 ; In re Brinkman. 7 Bank. Beg. 425; Martin v. Berry, 37 Gal. 208.
17 In re Brinkman. 7 Bank. Beg. 425.
Desty Fed. Con.— 8.
Digitized by LaOOQ IC
Art. I, § 8 POWEBS OF CONGBE8S. 86
State insolvent laws.— In the absence of congres-
sional legislation on the subject of bankruptcies, the States
may pass insolvent laws.i if they do not violate the obli-
gation of contracts.^ It is not the mere existence of the
power, but its exercise, which is incompatible with the ex-
ercise of the same power by the States. s The right of the
States is not extinguished, but merely suspended by the
enactment of a general bankrupt law.* They are not
thereby abrogatea, they operate until the bankrupt law
attaches on trie person and property of the debtor,^ and
they revive and are in force on the repeal of the bankrupt
law.<^ If tlie State court has acquired jurisdiction of a
case in insolvency, it may, nevertheless, proceed with the
case to its final conclusion, and its action will be valid as
if no law upon the subject had been passed by Congress."^
The jurisdiction of the State court attaches from the
moment when it makes an order staying creditors from
interference with the property of the debtor. « But the
bankrupt act, as soon as it took effect, ipso facto sus-
pended all action upon future cases arising under the in-
solvent laws of the State,^ and cases pending where the
surrender of the debtor's propertv had not been ordered. i®
So, State laws relating to insolvent corporations were
superseded, and State courts could notgo oeyond decree-
ing a forfeiture of their charter. ii A provision in a State
law which prohibits a transfer by an insolvent corporation
with intent to give a preference, is superseded.^- An at-
tachment law which permits a writ of attachment to issue
in cases which would authorize proceedings in bank-
ruptcy, is superseded. 1*
1 iialdwlQ V. Hale, 1 WaU. 228; Offden v, Saunders, 12 Wheat. 218:
Farmers & Mechs. Bank v. Smith, 6 wheat. 181: Stevens i>. Brown, 11
Bank. Begr. 570; Cook v. Moffat, 5 How. 316; Campbell v. Claudius,
Peters C. C. 484; Suydam v. Broadnax, 14 Peters, 67; Mather v. Bush, 16
Johns. 233; Matt, of Wendell, 19 Johns. 153. j
2 Sturges v. Crowninshield, 4 Wlieat. 196; Ogden v. Saunders, 12
Wheat. 213: Martin v. Berry, 37 Cal. 208; 2 Badt. Reg. 629; Boyle r.
Zacharie, 6 Peters, 848; McMillan v. McNeiU, 4 Wheat. 209.
8 Stnrges v. Crowninshield, 4 Wheat. 196; Adams v. Storey, 1 Paine,
79; Blancnard v. Russell, 13 Mass. 1: Betts v. Bagley, 29 Mass. 572;
Pugh V. Russel, 2 Blackf. 394; Alexander v. Gibson, l Nott & McC. 480;
Farmers' Bank v. Smith, 6 Wheat. 131. But see, contra, Ctolden r.
Prince, 3 Wash. C. C. 813; Mason v. Nash, 1 Breese, 16: Vanuxem r.
Hazelhursts, I South. N. J. 192; Olden v. Hallet, 2 South. K. J. 466; Bal-
lentine v. Halght, 1 Harr. N. J. 196.
4 Sturges v. Crowninshield, 4 Wheat. 196; Martin o. Berry, 37 Cal.
208; 2 Bank. Reg. 188; Van Nostrand v. Barr, 2 Bank. Reg. 154; 30 Md.
128.
5 Reed v. Taylor, 4 Bank. Reg. 710; 32 Iowa, 209; In re Zeigenfuss, 2
Ired.463.
e Lavender v. Gosnell, 12 Bank. Reg. 282; 43 Md. 153.
Digitized by LaOOQ IC .
87 POWERS OP CONGRESS. Axt. I, § 8
7 Martin v. Berry, 2 Bank. Beg. 188: 37 Gal. 206; Meeklns v. Cred-
itors, 3 Bank. Beg. 511: 19 La. An. 497; Lavender v. Gosnell, 12 Bank.
Beg. 282; 43 Md. 153; Larrabee v. Talbot, 5 Gill. 426; In re Horton,5
Law. Rep. 462; In re Judd, Ibid. 328; Longls v. Creditors, 20 La. Am. 15:
Dwlght V. Simon, 4 Ibid. 410: Judd v. Ives. 45 Mass. 401 : West v. Cred-
itors, 6 Bob. La. 261 ; 8 Ibid. 123; MInot v. Thacher, 48 Mass. 348.
R Martin v. Berry, 2 Bank. Reg. 188; 37 Cal. 208; Meeklns v. Creditors,
3 Bank. Reg. 511 ; 19 La. An. 511.
9 Comer v. Miller, I Bank Reg. 403: Commonwealth v. O'Hara, 1
Bank. Reg. 19; 6 Law Reg. N. S. 765; Perry v. Langley, 2 Bank. Beg.
180; 7 Amer. Law Reg. 429; Van Nostrand v. Ban*, 2 Rank. Reg. l.M; 30
Md. 128; Martin v. Berry, 2 Bank. Reg. 188; 37 Cal. 208: Cassard t>.
Kroner, 4 Bank. Reg. 569: In re Reynolds, 9 Bank. Reg. 50; 8 R. 1. 485;
Rowe V. Page, 13 Bank. Reg. 366; 54 N. H. 190: Shears r. Soihinger, 10
ADb. Pr. N. S. 287; Bishop v, Loewen, 1 Pa. L. J. 368: In re Eames, 2
Story, 322: 2 Bank. Reg. 1»8. The date of the suspension was June 1st.
18b7; Martin v. Berry, 2 Bank. Reg. 188: 37 Cal. 208; Day v. BardweUe,
3 Bank. Reg. 455; Chamberlain r. Perkins, 51 N. H. 336; In re Wynne,
Chase, 227.
10 Fisk V. Montgomery, 21 La. An. 446; West v. Creditors, 4 Rob. La.
88; 8 Ibid. 123.
11 Thomhill V. Bank of Louisiana, 3 Bank. Reg. 110; 5 Ibid. 367: 1
Woods, 1; In re Merch. Ins. Co. 6 Bank. Reg. 43; 3 Biss. 162; In re In-
dependent Ins. Co. 6 Bank. Reg. 169, 260; 1 Holmes, 103; 2 Low, 97, 187:
Piatt V. Archer, 6 Bcnk. Reg. 465 ; 9 Blatchf. 559; Shryock v. Bashore, U
Bank. Reg. 481.
12 French v. O'Brien, 52 How. Pr. 394.
13 Tobln ©. Trump, 3 Brewst. 288.
"Wlien superseded.— The bankrupt act does not ipso
facto suspend State laws for the collection of debts. ^ So,
a statute for the more effectual appropriation of a debtor's
property is not suspended.^ So, where debts do not exceed
the amount specified in the bankrupt laws there is no con-
flict of laws.* So the State insolvent law remains in
full force in respect to matters over which the bankrupt
law declines to take jurisdiction.* The bankrupt law does
not supersede a State law reflating assignments for the
benefit of creditors ;6 such a law is not a part of the bank-
rupt law,<> but an assignment made as a part of the ma-
chinery of a State insolvent law is void.'^ A State law
to abolish imprisonment on civil process, and whose aim
and purpose is simply to liberate the person, is not super-
sedea,^ nor a law which merely protects the person from
imprisonment, although it provides for the distribution of
his property,^ nor a law providing for the arrest and pun-
ishment of fraudulent debtors, lo A State law providing:
for the protection of savings banks and their depositors is
valid, although passed while the bankrupt law was in
force.il State laws are operative in all cases which are
not within the provisions of the bankrupt law. 12 if any
State exemption law is in conflict with acts of Congress,
it must yield. 18
Digitized by LaOOQ IC
Art. I, § 8 POWEBS OF OONOBESS. 88
1 ChancUer v. Siddle, 10 Bank. Beg. 236; 3 DiU. 477.
2 Bertbelon v. Betts, 4 Hill, 577.
8 Shepardson's Appeal, 36 Conn. 23.
4 Geery's Appeal, 43 Conn. 289.
5 In re Hawkins, 2 Bank. Beg. 378; 34 Conn. 548; Beed v. Taylor, 4
Bank. Beg. 710; 32 Iowa, 209; Maltbie v. Hotchkiss, 5 Bank. Beg. 4^ 38
Conn. 80; Mayer V. Hellman, 13 Bank. Beg. 440; 91 U. S. 496: Vt>n Hein
V. Elkus, 15 Bank. Beg. 194: Ebersole v. Adams, 13 Bank. Beg. 141; 10
Bush, 83; Linthicum v. Feniey, 11 Bush, 131.
6 Cook V. Bogers, 13 Bank. Beg. 97; 31 Mich. 391.
7 Bowe V. Page, 13 Bank. Beg. 366; 54 N. H. 190; Shryock v. Bashore,
13 Bank. Beg. 481; 15 Ibid. 283; 82 Pa. St. 159.
8 In re Beynolds, 9 Bank. Beg. 50; 8 B. I. 485; In re Bank, Crabbe,
493; Shears v. Solhinger, 10 Abb. Pr. N. S. 287; Steehnan v, Mattix, 36
N. J. 314 ; Jordan v. HaU, 9 B. I. 218.
9 SulUvan v. HleskiU, Crabbe, 525; 2 Pa. L. J. 283; StockweU v. SU-
loway, 100 Mass. 287.
10 Scully V. Kirkpatrick, 79 Pa. St. 324 ; Gregg v. Hllsen. 34 Leg. Int. 20.
11 Simpson V. Savings Bank, 15 Bank. Beg. 385; 56 N. H. 466.
12 Shepardson's Appeal, 36 Conn. 23; Clarke v. Bay, 1 Har. & J. 318.
13 Martin v. Hunter, 1 Wheat. 304; Glblwns v. OgdeUtS Wheat. 1; 17
Johns. 488; Holmes v. Jennison, 14 Peters, 540; U. S. v. Hart, Peters C.
C. 390; In re Brown, 3 Bank. Be .. 255; Commonwealth v. Kimball, 24
Pick. 859.
Validity of State insolvent laws.— State insolvent
laws which attempt to discharge from all liability for
debts contracted previous to discharge, i or from contracts
of foreign creditors, are repugnant to this provision of the
Constitution, 2 and to this efi'ect the States are deemed
foreign to each other .8 Such laws can have no extra-ter-
ritorial effect so as to operate upon the rights of non-resi-
dents of the State,^ whether the residents of another State
be citizens of the United States or foreigners, unless
where a citizen of such other State voluntarily becomes a
party to the proceedings ; s so, the claim of a citizen' of
another State will not be barred by a discharge under the
State insolvent laws, although the debt was made paya-
ble in the State, ^ and this without reference to the place
where the contract was made."^ The fact that the original
indebtedness has been converted into a judgment in no
wav changes the legal rights and liabilities of the parties.
A foreign creditor oy suing for a debt in a State court
does not adopt its insolvent laws or thereby waive his
constitutional immunity ;« the act of waiving a constitu-
tional privilege or immunity must be unequivocaL^ If
the plaintiff was a resident of the State at the time the
judgment was entered, his removal from the State before
commencement of insolvency proceedings will not bar a
Digitized by LaOOQ IC
89 POWERS OF CONGRESS. AZt.!, § 8
release of the debt.i® a. citizen of another State wlio
voluntarily makes himself a party to the proceedings in
insolvency, and receives a dividend, abandons his extra-
territorial immunity and his claim is barred by the dis-
charge,^! unless the State court has no Jurisdiction of the
case;^-^ so, a mere appearance to oppose a discharge will
not render such discharge a bar to the demand. ^^ X cred-
itor makes himself a party to the proceedings by proving
his debt; i* so, if a foreign creditor unites in recommend-
ing a trustee, he becomes a party to the proceedings.^''
If a foreign debtor removes to the State wliere the cred-
itor resides and there obtains his discharge, it will bo
valid against such creditor. i<*
1 Farmers & Mechanics' Bank v. Smith, 6 Wheat. 131; Ogden v.
Saunders, 12 Wheat. 213.
2 Farmers & Mechanics' Bank v. Smith, 6 Wheat. 131; Suydam r.
Broadnax, 14 Peters, ($7.
3 Cook V. Moffat, 5 How. 295; Scott v. Sandford, 10 How. 303; Been
V. Rhea, 5 Tex. 354.
4 Baldwin v. Hale, I Wall. 223 ; 3 Ai
V. Varrenne, 1 Dili. 515; Pratt v. Chai
JSmery v. Greenough, 3 Dall. 369; Mel
Ogden r. Saunders, 12 Wheat. 213; ]
Boyle V. Turner, 6 Peters, 625; Cook t
Hale, I Wall. 223: 1 Cliff. 511 ; Gilman
hull V. Wagner, Bald. 2%; Babcock v.
Marean, 3 Mason, 88; Campbell v, CI
r. Foster, 2 Story, 383; Atwater v. 1
Cook, 9 Conn. 314: Van Raugh v. Van
Rodolph, 3 Greene, (Iowa) 299; Pugh
Smith, 2 Johns. 235; Fisher ». Wheeh
GilL & J. 509: Tabor v. Harwood, 5 I
196: Bradford v. Farrand, 13 Mass. 18
Fiske r. Foster, 61 Mass. 597; Clak r
Pickering, 59 Mass. 83: Dlnsmore v. Bradley, 71 Mass. 487; Chotean ».
Richardson, 94 Mass. 365; Byrd v. Badger, McAll. 263, 443; Bancher v,
Fisk, 33 Me. 316; Potter ». Kerr, 1 Md. Ch. 275; Palmer v. Goodwin, 32
Me. 535; Fareira v. Keevil, 18 Mo. 186; Ballantyne v. Halght, I Harr. 196;
Vannxemv. Hazlehursts, 1 South. 550; Whitney ©.Whiting. 35 N. H. 457;
Donnelly r. Corbett, 7 N. Y. 500; Beers v. Rhea, 5 Tex. 349; Shelton c.
Wade, 14 Tex. 52.
5 Pratt ». Chase, 44 N. Y. 597; 19 Abb. Pr. 150.
6 Baldwin v. Halo, 1 Wall. 223; Baldwin v. Bank, 1 Wall. 234: 1 Cliff.
519; Stevenson v. King, 2 CUff. 1: Riston v. Content, 4 Wash. C. C. 476;
Norton v. Cook; 9 Conn. 314; Anderson v. Wlieelcr, 25 Conn. 603: Felch
V. Bngbee, 48 Me. 9; Chase v. Flagg, Ibid. 182; Kelley v. Dniry, 91 Mass.
27; Demerltt v. Exchange Bank, 20 Law Rep. 606; Newmarket Bank r.
Butler, 45 N. H. 236; DonneUy v. Corbett, 7 N. Y. 500.
7 Baldwin r. Hale, 1 WaU. 223; Poe v. Duck, 6 Md. 1; Woodbridgo
V. Allen, 51 Blass. 470; Sav£^e v. Marsh. 51 Mass. 594. But see Sherrill
». Hopkins, 1 Cow. 103; Raymond v. Merchant, 3 Cow. 147.
8 Woithlngton v. Jerome. 5 Blatchf. 279: Easterly r. Goodwin, C5
€k>nn. 279; Wyuian r. Mitchell, 1 Cow. 316; Watson v. Bonmc, 10 Mass.
337; McCarty v. Gibson, 5 Gmtt. 307; Choteau v. Richardson. U Mass.
365; Hawleyo. Hunt, 27 Iowa. 303; Poe r. Duck, 5 Md. 1; Donnelly v.
Digitized by LaOOQ IC
Art. I, § 8 rowERs of congress. 90
Corbett, 7 N. Y. 500: Wliliney v. Whltinj?, 35 N. H. 457; Soulo v. Chase.
S9N.Y.342; lAbb.Pr. N. S. 48. But Bee Davidson v. Smith, 1 Blss.
846; Betts v. Bagley, 29 Mass. 572.
9 Donnelly v. Corbett, 7 N. Y. 600.
10 Brown v. Bridge, 106 Mass. 563.
11 Clayv. Smith, 3 Peters, 411; Gardner r. Lee's Bank, 11 Barb. 598;
Joumeay v. Gardner, 65 Mass. 355; Woodbridge v. Wright, 3 Conn. 523.
12 Agnew v. Piatt, 32 Mass. 417.
13 Norton v. Cook, 9 Conn. 314; McCarty v. Gibson, 5 Gratt. 307; Col-
lins V. Rodolph, 3 Greene, (Iowa) 299.
14 Blackman v. Green, 24 Yt. 17.
15 Jones r. Horsey, 4 Md. 306.
16 Bealr.Barchstead,64 Mass. 523. And see Babcock v. Weston, 1
Gall. 168.
Validity of insolvency discharge.— If both parties
are citizens of the State a discharge will be a bar to the
debt, although the contract was made and was to be per-
formed in another State ;^ so if the parties became citizens
of the State before the filing of the petition for discharge ;2
so, where both parties were citizens of the same State, a
discharge will bar an action upon the contract in another
State,8 although the creditor be an alien.* It will release
the debtor from the contract, although the creditor had
removed to another State before it was granted. ^ If the
indorser and maker of a note reside in the State at the time
the discharge is granted, the discharge will bar the debt;^
but if the note was indorsed before maturity to a citizen
of another State, by whom it was held at the time of the
application for a discharge, it will not release the debtor, ^
but otherwise if it be taken after it is overdue,^ unless
taken before the filing of the petition. ^ A discharge not
Yalid under the Constitution in the Federal courts is
equally invalid in the State courts.^®
1 Marsh v. Putnam. 69 Mass. 551. But see Smith v. Mead, 3 Conn. 258.
2 Hall V. Whichell, 33 Vt. 588. But see Witt v. FoUett, 2 Wend. 457.
3 Hempstead v. Reed, 6 Conn. 480; Williams v. Guignard, 2 How.
(Miss.) 724; Stone v. Tibbetts, 26 Me. 110: Pltkhi v. Thompson, 30 Mass.
64; HaU v. Boardman, 14 N. H. 38; Wheelock v. Leonard, 20 Pa. St. 440;
Urton V. Hunter, 2 W. Va. 83.
4 Von Glahn v. Varrenne, 1 Dill. 615.
5 Brlgbam v. Henderson, 55 Mass. 430; Converse v. Bradley, Ibid.
434; Stoddard v. Harrington, 100 Mass. 87; Stevens v. Norris, 30 N.
H.466.
6 Wheelock v. Leonard, 20 Pa. St. 440.
7 Towno V. Smith, 1 Wood & M. 115; 9 Law Rep. 12; Anderson v.
Wheeler, 25 Conn. 603; Ballard t>. Webster, 9 Abb. Pr.404; Smith v.
Gardner, 4 Bosw. 54; Bancher v. Flsk, 33 Me. 316; Cbaso v. Flagg, 48
Me. 182; Felcb v. Bugbee, Ibid. 9; Bravnard v. Marshall, 25 Mass. 194;
Savoye v. Marsh, 61 Mass. 594: Houghton v. Maynard, 71 Mass. 552;
Digitized by LaOOQ IC
91 POWERS OF CONGBES8. Alt. I, § 8
Eaton V. Sweetser, 84 Ibid. 70, note. But see Bank v. Squires, 8 La.
An. 318.
8 HallviBoardnum, 14N. H. 38.
9 Fessenden v. Willey, 84 Mass. 67.
10 Ogden v. Saunders, 12 Wheat. 213; Shaw v. Bobbins, Ibid, 369;
Cook V. Moffat. 5 How. 295: Hammett v, Anderson, 3 Conn. 304; Smith
V. Healey, 4 Conn. 49; Atwater v. Townsend, Ibid. 47; Frey v. Kirk, 4
Gill. & J. 609; Fisher v. Wheeler, 6 La. An. 271; Spear v. Peabody, 10
Ibid. 145: Klmberly v. Ely, 23 Mass. 440; Beers v. Rhea,5 Tex. 349. But
see Van Hook v. Whitlock, 26 Wend. 40; 7 Paige, 373.
5 To coin money, regulate the value thereof, and of foreign
coin, and fix the standard of weights and measures ;
Money as here used means gold, silver, and copper
coins. ^ * * To coin money " is to mould into form a metallic
substance of intrinsic value. 2 The power was created
for the purpose of making and preserving uniformity and
purity in the standard of valae.3 The power to regulate
the value of money is exclusive in Congress,^ and without
limitation or restriction ^ as to coining and punishing for
tlie production of a false imitation.** It is in the discre-
tion of Congress to make gold and silver, or anything else,
a legal tender.' The legal tender acts do not lix a stand-
ard of value, or regulate money values, or make that
money which has no intrinsic value.s The grant of power
to coin money is not an implied prohibition against mak-
ing treasury notes a legal tender; '•* the power to coin and
the power to declare anything a legal tender are distinct
powers. 10 The grant of power to coin does not make that
coin of necessity a legal tender at the fixed standard. ^^
The power to fix the standard of weights and measures is
exclusive in Congress when exercised. 12
1 Maynard v. Newman, 1 Nev. 271; Thayer v. Hedges, 22 Tnd. 301;
Haffue V. Powers, 39 Barb. 458; Metropolitan Bank v. van Dyck, 27 N.
2 Grlswold v. Hepburn, 2 Duval, 29.
3 IT. S. V. Marigold, 9 How. 567; CampbeU v. U. S. 10 Iaw Rep. 400.
4 Van Husan v. Kanouse, 13 Mich. 303.
5 Maynard ». Newman, 1 Nev. 271 ; (leorge v. Concord, 45 N. H. 434;
ShoUenberger v. Briuton, 52 Pa. St. 9.
6 Fox V. Ohio, 5 How. 433.
7 Alexander v. Dunn, 6 Wheat. 220; Martin v. Hunter, 1 Wheat. 304:
Cohens v. Virginia, 6 Wheat. 264; Briscoe v. Bank of Kentucky, 11
Peters. 257 ; Legal Tender Cases, 12 Wail. 457 ; Metropolitan Bank v. Van
Dyck, 27 N. Y. 427; Norris v. Clymer, 2 Pen. 277; Moor ». City of Bead-
hi'i. 21 Pa. St. 188; People v. Green, 2 Wend. 274; People v. Constant, 11
Wend. 511.
8 Legal Tender Cases, 12 Wall. 553.
9 Legid Tender Cases, 12 Wall. 553.
Digitized by LaOOQ IC
Art. I, § 8 POWEBS OF CONGRESS. 92
10 Tbayer v. Hedges, 22 Ind. 282.
11 Van Huseu v. Kanouse, 13 Mich. 303.
12 Passenger Cases, 7 How. 282; Weaver t;. Fegley, 29 Pa. St. 27.
To provide for the punishment of counterfeiting the secur-
ities and current coin of tJie United States ;
Counterfeiting. — Congress may provide for the pun-
ishment of the offense of passing, uttering, or selling
counterfeit coin,i or for bringing in irom a foreign country
counterfeit coin made in the similitude of United States
coins. 2 So Congress may provide for the punishment for
counterfeiting foreign coins made current by the laws of
the United States.^ It is competent for Congress to pro-
tect the sacredness of the metallic currency, even if coun-
terfeited for an innocent i^urpose.* There is a distinction
between counterfeiting and uttering false coin. Counter-
feiting applies to the act of making, as distinguished from
the act of circulating.^ The former is an offense directly
against the Government; the latter is an offense against
the State, and may be punished by the laws of the State.^
That the power of Congress is not exclusive;" that States
have not a concurrent right to provide for i)unishment;3
that this clause does not prevent a State from passing
laws to punish counterfeiting. ^ A State may impose a
penalty upon the act of keeping moulds and tools adapted
to counterfeiting, 10 or punish the offense of keeping coun-
terfeit coin with the intent to pass the same,ii or for the
counterfeiting of a national bank-note ;i=^ so a State may
punish for a cheat, though the instrument be a base coin
in the similitude of a dollar of the United States coin-
age, i^
1 U. S. V. Marigold, 9 How. 560; harmonizing Fox v. Ohio, 5 How.
410; this power questioned in U. S. v. , 2 Law. Reu. 90.
2 U. S. t. Marigold, 9 How. 560; Legal Tender Cases, 12 WalL 658;
Fox V. Ohio, 5 How. 410; Metropolitan Bank v. Van Dyck, 27 N. Y. 450.
3 U. S. V. Gardner, 10 Peters, 618; U. S. v. Brown, 4 McLean, 142; U.
8. V. 13urns, 5 McLean, 23. •
4 U. S. V. Khig, 5 McLean, 210.
5 Campbell v. U. S. 10 Law Rep. 400.
G Fox V. Ohio, 6 How. 410; U. S. r. Marigold, 10 How. 560; People r.
White, 34 Cal. 183; Harlan ». People, 1 Doug. Mich. 207; Siaemoro v.
State. 3 Head, 26; State v. Antonio, 2 Tread. 77«; U. S. r. .2
Law Rep. 92.
7 Fox p. Ohio, 5 How. 410; U. S. v. Marigold, 9 How. 560.
8 Mattison v. Missouri, 3 Mo. 421, and dissenting opin. ; Fox v. Ohio,
& How. 433.
9 People V. White, 34 Cal. 183; Fox r. Ohio, 5 How. 410.
d by Google
03 POWERS OF CONGRESS. Art. I, § 8
10 State V. Brown, 2 Or. 221.
11 Sizemore v. State, 3 Head, 26.
12 State V. Kandali, 2 Ark. 89.
13 Fox V. Ohio, 5 How. 410; U. S. v. Marigold, 9 How. 069; Moore v.
People, 14 How. 20.
■^ To' establish post-offices and post^oads;
To establish comprehends the renting or huilding of
a house, and the construction and repair of a road, and
the appropriation of money for such 'purposes ; ^ or the
making oi contracts relating thereto; 2 or to authorize a
telegraph company to construct, maintain, and operate
its lines along any military or post-road.^ It is under
this provision that Congress has adopted mail regulations,
and punished depredations on the mails.* States have
concurrent power to punish fbr a highway robbery of the
mail.^ Congress may forbid transportation by mail of
circulars concerning lotteries. ^ A mail contractor must
pay the same tolls as other citizens.'' As to post-roads,
the power of Congress is supreme and plenary, intended
to embrace everything necessary and proper for regulating
and transporting the mails, 8 and is restricted only to such
roads as are regularly laid out under the laws of the sev-
eral States. 9 The power to establish post-roads is deemed
exhausted in the designation of roads on which the malls
are to be transported, i*' A statute interfering with the
rights of a telegraph company authorized by Congress to
set up its lines along a military or post-road is unconsti-
tutional. ^^ Congress may use any means appropriate in
the exercise of this power, as appointing postmasters, defin-
ing their duties and compensation,proviaing for carriage of
mails, punishing for crimes or obstructions to the service.^*
1 Searlght v. Stokes, 3 How. 151 ; Neil v. State, 3 How. 720 ; Dickey v.
Turnpike Go. 7 Dana, 113.
2 Searight v. Stokes, 3 How. 151.
3 Pensacola Tel. Co. v. Western U. Tel. Co. 96 U. S. 1; 1 Woods. 643.
4 Sturtevant v. City of Alton. 3 McLean. 393; U. S. v. Rhodes, 1 Abb.
U. S. 50.
5 Houston V. Moore, 5 Wheat. 34.
6 Ex parte Jackson, 96 U. S. 727.
7 Dickey r. Turnpike Co. 7 Dana, 113.
8 Dickey v. Turnpike Co. 7 Dana, 113.
9 Penn. v. Wheel. & B. Br. Co. 18 How. 421, Dickey t. Turnpike Co.
7 Dana, 113.
10 V. S. t?. Bailroad Br. Co. 6 McLean, 617.
11 Pensacola Tel. Co. v. Western U. Tel. Co. 96 U. S. 1.
12 TT. S. V. Rhodes, 1 Abb. U. S. 60.
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF COKGBESS. 94
8 To promote the progress of science and useful arts by se-
curing for limited times to authors and inventors the exclu-
sive right to their respective writings and discoveries;
Po"wer defined.— The power granted in this provision
is general, and it rests in Congress to say for what time
and under what circumstances the patent for an inven-
tion shall be granted; ^ it is domestic in its character, and
contihed within the limits of the United States; 2 its exer-
cise is limited to authors and inventors,^ and their rights
are to be secured for only a limited time.'* Congress may
confer a new and extended term upon the patentee even
after the expiration of the first, ^ and may reserve the
rights and privileges of assignees.^^ There is no constitu-
tional restriction on Congress to exercise this power by
making special grants ; this is a mere question of expedi-
ency. "^ The power of legislation is exclusive in Congress, ^
and States cannot punisn frauds done under color ofrights
held from the United States. »
1 Evans v. Jordan, 9 Cranch, 199: 1 Brock. 248; Jordan v. Dobson. 4
Fish. 232; Blanchard v. Sprague, 3 Sum. 535; 2 Story, 164.
2 Browne v. Duchesne, 19 How. 183; 2 Curt. 371.
3 Livingston v. Van Ingen, 9 Johns. 507.
4 Livingston v. Van Ingen, 9 Johns. 609.
5 Bloomer v. StoUey, 5 McLean, 158; Blanchard's O. S. Fact. v. War-
ner, 1 Blatclif . 258; Evans '-. Bobinson, 1 Caro. L. B. 209; Jordan v. Dob-
son, 4 Fish. 232; Blanchard v. Haynes, (J West. L. J. 82.
6 Blanchard's 6. S. Fact. v. Warner, 1 Blatchf . 258.
7 Bloomer v. Stolley, 5 McLean, 158.
8 Cranson v. Smith, 37 Mich. 300; State v. Lockwood, 43 Wis. 403.
9 Cranson v. Smith. 37 Mich. 309.
Copyrights.— All authors may obtain copyrights for
their books, maps, pictures, and everything printed and
first published in the United States, ^ but they have no ex-
clusive property in a published work except under some
act of Congress. 2 The power of Congress cannot be ex-
tended to the introduction of new works or inventions, ^
nor does this provision apply to trade-marks,* on which
Congress is not authorized to legislate under this clause
of the Constitution, 6 nor does it authorize the protection
of a composition which is grossly indecent ana tends to
corrupt the morals of the people. This provision does
not prevent a State from legislating on the same subject
in the absence of congressional legislation," but no State
can in any form interfere with the right of private per-
sons under the copyright laws of the United States. ^
Digitized by LaOOQ IC
95 POWERS OF coKOBBss. Art. I, § 8
1 Wheaton v. Peters, 8 Peters, 591; JoUle v. Jaques, 1 Biatcbf. 618;
Clayton v. Stone, 2 Paine, 283; Blnns v. Woodruff, IWash. C. C. 48.
2 Wheaton v. Peters, 8 Peters, 691 ; Dudley v. Mayhew, 3 N. Y. 12.
3 Livingston v. Van Ingen, 9 Johns. 507.
4 Rodgers v. Phelps, 1 Off. Gaz. 31 ; Leldersdorf v. Flint, 13 Am. L.
Rev. 392. Contra, McLean v. Fleming, 6 Am. L. Rep. 233.
5 Leidersdorf v. Flint, 13 Am. L. Rev. 392. And see Duwell r. Boh-
mer, 10 Chic. L. N. 356.
6 Marthietti v. Magulre, Deady, 216; 1 Ahb. U. S. 356.
7 Passenger Cases, 7 How. 365; Moore v. People, 14 How. 20; Briggs
V. Johnson Co. 4 Dill. 151; Livingston v. Van Ingen, 9 Johns. 607.
8 Little V. Gould, 2 Blatchf . 166.
Patent laws. — Patents are granted to promote the
progress of science and the useful arts.i The power of
Congress on the subject of patents is plenary.'^ The pro-
vision contains no restriction as to cases where the inven-
tion has not been known or used by the public. All that
is required is that it be an invention.^ Invention implies
originality,* the finding out, contriving, or creating some-
thing which did not exist before.^ It must be the product
of the inventor's mind.^ If a patent law is constitutional,
it must be enforced without regard to the policy or jus-
tice which dictated it.^ A patent for a medicine does not
confer on the patentee the right to prescribe it. 8 A patent
for a plan for constructing and drawing lotteries does not
authorize the establishment of a lottery contrary to State
law.8 If a corporation is the owner of a patent, it is not
subject to the provisions of a State law relating to foreign
corporations. i<*
1 Grant v. Raymond, 6 Peters, 218; Hogg v. Emerson, 6 How. 486;
Brooks V. Fish, 15 How. 223; Blanchard v. Sprague, 3 Sum. 536.
2 Evans v. Eaton, 3 Wheat. 454; 7 Wheat. 366; Evans v. Hettlch, 7
Wheat. 453; McClurg v. Kingsland, 1 How. 202; Blanchard v. Sprague,
3 Sam. 541.
3 Evans v. Jordan, 9 Cranch, 199; 1 Brock. 248; Jordan v. Dobson, A
FistL 232; Blanchard v. Sprague, 2 Story, 164; 3 Sum. 535.
4 Blake v. Stafford, 3 Fish. 305.
5 Ransom v. Mayor of N. Y. 1 Fish. 264; Gonover v. Roach, 4 Fish. 16.
6 Pitts V.Hall, 2 Blatchf. 234.
7 Bloomer v. Stolley, 6 McLean, 168.
8 Jordan v. Dayton, 4 Ohio, 294.
9 Vannini v. Paine, 1 Harring. 66.
10 Orover & B. S. M. Co. v. Butler, 63 Ind, 454; Mowing Mach. Co
V.Caldwell, 54 Ind. 270.
Digitized by LaOOQ IC
Art. I, § 8 POWEBS OF CONGRESS. 96
Rights secured.— The word " secure" does not mean
the protection of an acknowledged right. ^ The right of
property in an invention or discovery does not imply the
unlimited power of using it; this is subject to the regula-
tion and control of the several States. 2 So, the State may
regulate the sale of an article that is dangerous, manufac-
tured in pursuance of a patented invention ;« but if the
patentee complies with the laws of Congress, an act of the
State legislature which attempts to direct the manner in
which patent rights shall be sold, is void.^
1 Wheaton v. Peters, 8 Peters, 591.
2 Livingston r. Van Ingen, 9 Johns. 507; 1 Paine, 45; 4 Hall L. J. 56.
8 Patterson v. Commonwealth, 11 Bush, 311.
4 Crittenden v. White, 9 Ch. L. 110; Ex parte Robinson. 4 Fish. 186;
Holllda V. Hunt, 70 111. 109; Helm v. First Kat. Bank, 43 Ind. 167.
9 To constitute tribunals itiferior to the Supreme Court ;
The United States courts are distinct and independ-
ent of each other. 1 The power to establish courts and endow
them with jurisdiction affords no pretext for the abroga-
tion of any established rule of property; 2 hence the de-
cision of the supreme court of a State as a rule of prop-
erty is binding on the courts of the United States. «
1 Taylor v. Carryl, 20 How. 683.
2 Suydam v. WlUlamson, 24 How. 433.
3 Jackson v. Chew, 12 Wheat. 162; Beauregard v. N. 0. 18 How. 497;
Arguello v. U. S. 539; iLeague v. Egery, 24 How. 366.
10 To define and punish piracies and felonies committed on
the high seas, and offenses against the law of nations ;
Congress need not define in terms the offense of piracy.
It may be left to judicial interpretation. 1 To define is to
enumerate the crimes which shall constitute piracy.* Pi-
racy is an offense against all nations, and against the
United States as well.'* Robbery or forcible depredations
on the sea, animus furandiy is piracy. * " High seas*' are
not only waters of the ocean, but waters on the sea-coast
below low- water mark, whether within territorial bounda-
ries or not.fi The slave trade is not piracy under the law
of nations. 6 Congress may punish for attempt to commit
mutiny,"^ or for a conspiracy to burn a ship.s
1 U. S. ». Smith, 5 Wheat. 153; U. S. v. Pirates, Ibid. 184.
2 U. S. 0. Smith, 5 Wheat. 153.
3 Case of Jose Ferrelra dos Santos, 2 Brock. 507.
4 U. S. V. Smith, 5 Wheat. 153; U. S. v. Palmer, 3 Wheat. 610.
d by Google
97 POWERS OF CONGBB8S. Art. I, § 8
6 U. S. t. Pirates. 5 Wheat. 184; U. S. ». Wlltberger, 5 Wheat. 76;
Warin^r v. Clarke, 5 How. 441 ; Howard v. Ingersoll, 13 How. 381: U. S.
V. Omsh, 5 Mason, 290; The Harriet, 1 Story, 2d9; Jones v. Boot, 6
Mass. 435.
6 The Antelope, 10 Wheat. 66.
7 U. S* V. Crawford, 1 N. Y. Leg. Obs. 288.
8 TJ. S. V. Cole, 5 McLean, 513.
112b declare war, grant letters ofmarqyue and reprisal, and
make rules concerning captures on land and water ;
War is that state in which a nation prosecutes its rights
by force. 1 Civil war exists when the regular course of
justice is interrupted by revolt, rebellion, or insurrection.^
** To declare ** may be as well by a formal recognition as
by a declaration in advance. 8 Congress alone has the
power to declare war.* The power to declare war involves
the power to prosecute it^ by all means and in any man-
ner in which war may be legitimately prosecuted, includ-
ing the power to confiscate the property of public ene-
mies, « and the power to make legal treasury notes a legal
tender for public and private debts,"' and the power to
acquire territory, either by conquest or by treaty ;8 but a
war declared by Congress can never be presumed to be ^
waged for the purposes of conquest or the acquisition of *
territory .9 So, a declaration of war does not of itself
enact a confiscation of the property of an enemy within
the territory of the belligerent, i® Congress alone has the
power to confiscate the property of an enemy and debts
due to an enemy .11 The power to declare war includes
the iMjwer to call the requisite force into service,!^ and the
authority to transport troops through all parts of the
Union by the most expeditious routes, i^ It is not limited
to victories in the field and dispersion of the enemy, but
carries with it the power to guard against the renewal of
the conflict, and to remedy evils arising from its rise and
progress.^* It extends to all legislation necessary to the
prosecution of the war with vigor and success, as sus-
pending the writ of habeas corpu^^^^ or imposing such con-
altions upon commercial intercourse in time of war as it
sees fit, and making a payment for a license a part of the
conditions,!^ or creating non-intercourse acts,i' or permit-
ting limited commercialintercourse with the enemy. i^ So,
an act of Congress emancipating the slaves of those who .
aid in a rebellion, is valid. ^^ Congress may pass an act
suspending the Statute of Limitations during the exist-
ence of a rebellion. 20 The power to declare war includes
the authority to use other means besides those indicated
Destt Fbd. Con.— ».
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF CONGBES8. 98
by its termB.21 War declared by Coneress is not the only-
war within the contemplation or the Constitution.^* The
power to make rules concerning captures extends to capt-
ures within the United States as well as to those that are
extra-territorial.28 Until Congress passes laws on the sub-
ject of war and reprisals, no private citizen can enforce
such rights.3* A belligerent may, by capture, enforce his
authority.26
1 Prize Cases, 2 Black, 666.
2 Prize Cases, 2 Black, 667.
3 Bas V. Tlngy, 4 Dall. 37: Talbot v. Seaman, 1 Cranch, 28; Grlswold
V. Waddlngton, 16 Johns. 449.
4 Prize Cases, 2 Black, 635; The Tropic Wind, 24 Law Rep. 144; Per-
kins V. Rogers, 35 Ind. 124.
5 Metropolitan Bank v. Van Dyck, 27 N. Y. 400; Legal Tender Cases,
12 WaU. 457; Kneedler v. Lane, 45 Pa. St. 238.
6 Miller v. U. S. 11 Wall. 305; Tyler v. Defrees, 11 WaU. 331; Prize
Cases, 2 Black, 635; The Ned, 1 Blatchf. Pr. 119; Mrs. Alexander's Cot-
ton, 2 Wall. 404.
7 Legal Tender Cases, 12 Wall. 457; Dooley v. Smith, 18 Wall. 604;
Railroad Co. v, Johnson, 15 WaU. 195; Lick v. Faulkner, 25 Cal. 404;
Curiae v. Abadle, Ibid. 502; Eierskl t;. Matthews, Ibid. 591; Jones v.
Harker, 37 Ga. 603; Black v. Lusk, 69 lU. 70; Hague v. Powers, 39 Barb.
427; Reynolds v. Bank, 18 Ind. 467; Thayer v. Hedges, 23 Ind. 141: Hint-
rager v. Bates, 18 Iowa, 174; George v. Concord, 45 N. H. 434; SnoUen-
berger v. Brenton, 52 Pa. St. 9.
8 Sere v. Pltot, 6 Cranch, 332; Amer. Ins. Co. v. Canter, 1 Peters, 542;
Fleming v. Page, 9 How. 603; Scott v. Sandford, 19 How. 611.
9 Fleming v. Page, 9 How. 603; Amer. Ins. Co. p. Canter, I Peters,
671; Stewart t>, Kahn, 11 WaU. 507.
10 Brown v. U. S. 8 Cranch, 153.
11 Brown v. U. S. 8 Cranch, 153; Brltton v. Butler, 9 Blatchf. 456.
12 Kneedler v. Lane, 45 Pa. St. 238.
13 CrandaUi;.NeTada,6WaU.36.
14 Stewart v. Kahn. 11 WaU. 493; White v. Hart, 13 WaU. 646; 39 Ga.
306.
15 ExparteMmigan,4WaU. 139.
16 HamUton v. DlUon, 21 WaU. 73.
17 Phelps r. Sowles, 19 Wend. 547.
18 HamUton V. DUlon, 21 WaU. 73.
19 Buie V. Parker, 63 N. C. 131 ; Jacoway v. Denton, 25 Ark. (S5.
20 Stewart v. Kahn, 11 WaU. 507.
21 Prize Cases, 2 Black, 670.
22 The Tropic Wind, 24 Law Rep. 144.
23 Brown v. U. S. 8 Cranch, 153.
24 Brown v. U. S. 8 Cranch, 153.
25 Lamar v. Browne, 92 U. S. 187.
Digitized by LaOOQ IC
^ 99 POWEBS OF CONGRESS. Att. I, § 8
12 jfQ raise and support atinies, hut no appropriation of
•' money to that use shaU he for a longer term than two years;
The po"wer to ** raise and support armies " includes all
• the means by which armies can be raised, by compulsory
I- draft as well as by voluntary enlistment. ^ Each individ-
' ual can be required to perform military duty without his
. consent if the demand is made by a proper exercise of the
national will; 2 and Congress may enact that a person
shall be deemed in the military service from the time of
the draft. ^ In authorizing a national conscription, the
Constitution ignores the State governments, and any aid
rendered hj them would be simpl;^ as volunteers,* the
power to raise and support armies being exclusive in Con-
gress ; ^ but where an act of Congress provides for a draft
of men into the army a State may give a bounty to those
who volunteer.6 Congress may make such orders and
regulations as may be necessary to prevent an evasion of
duty by those liable to military service."^ The State power
over the militia is subordinate to the power of Congress to
raise armies out of the population that constitutes it.s
Congress has a constitutional power to enlist minors in
the army and navy without the consent of their parents,^
and State courts cannot discharge from enlistments under
habeas corpus^^^ but State courts may discharge on haheas
corpus persons enlisted contrary to acts ot Congress. 11
Xhis constitutional power includes the power to provide
necessary officers, equipments, and supplies, and to estab-
lish military academies.^
1 Kneedler v. Lane, 45 Pa. St. 238; In re Griner, 23 Wis. 423. And
see Ex parte Coupland, 26 Tex. 386.
2 U. S. V. Baint>ridge, 1 Mason. 71 ; Ex parte Goupland, 26 Tex. 894.
3 Kneedler v. Lane, 45 Fa. St. 238.
4 Booth V. Woodbury, 32 Conn. 118.
5 Ferguson v. Landram, 1 Bush, 548.
6 Booth V. Woodbury, 32 Conn. 118; Taylor v, Thompson, 42 Ga. 9;
Coltmanr.Knlghtly,24Ind.509; Board w.Bearse, 25 Ind. 110; Winches-
ter V. Corinna, 55 Me. 9; Wilson v. Burkman, 13 Minn. 441; Comer v.
Folsom, 13 Minn. 219; State v. Demarest, 32 N. J. 528; State v, Jackson,
31 N. J. 189; Speer v. Directors, 50 Pa. St. 150; Ahl v. Glenn, 52 Pa. St.
324.
7 AUen r. Colby, 45 N. H. 544.
8 Kneedler v. Lane, 45 Pa. St. 238.
9 Ex i)arte Brown, 5 Cranch C. C. 554; U. S. v. Stewart, Grabbe, 205;
Commonwealth v. M.urray, 4 Binn. 487; Commonwealth v. Barker, 5
Binn. 423; Case of Roberts, 2 HaU L. J. 192; Shirk's Case, 20 Leg. Int.
260; U. S. V. Bainbridge, 1 Mason, 71; Coinmonwealth v. Gamble, U
Serg. & B. 94. But see U. S. v. Wright, 5 PhUa. 296; Henderson's Case,
50 1^. Int. 187; U. S. v. Rhodes, 10 Abb. U. S. 43.
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF CONGRESS. 100
10 Tarble's Case, 18 Wall. 397 ; Matter of Farrand, 1 Abb. U. S. 146; In
re Keeler, Hemp. 306; Ii> re veremaltre, 9 N. Y. Leg. Obs. 129; In re
Siflord, 5 Am. Law Beg. 659; In re McDonald, 9 Ibid. 661.
11 In re Dobb, 9 Am. L. B. 565; Ex parte McDonald, Ibid. 662; In re
Wilson, 18 Leg. Int. 316: Comm. v. Carter, 20 Ibid. 21: In re Henderson,
Ibid. 181: U. S. v. Wright, Ibid. 21; In re Follis, 19 Leg. Int. 276: In re
McCall, Ibid. 108; U. S. v. Taylor, 20 Leg. Int. 284; In re Hicks, 11 Pitts.
L. J. 25; In re Webb, 10 Pitts. L. J. 106; Comm. t-. Rogers, Ibid. 178; In
re Barrett, 12 Pitts. L. J. 90; In re Stevens, 24 Law Bep. 205; Comm. v.
Wright, 3 Grant, 437. Contra, In re Phelan, 9 Abb. Pr. 286; Spangle's
Case, 11 Am. L. B. 596; In re Jordan, Ibid. 749; In re Shirk, 3 Grant7460.
12 U. S. i>. Bhodes, 1 Abb. U. S. 60. •
18 To provide and maintain a navy ;
This grant of power authorizes the Government to buy
or build vessels of war, man, arm, and prepare them, and
to establish naval academies, i and to provide for punish-
ment for desertion and other crimes, and make all need-
ful rules for the government of the navy .2 Public ships
of sovereigns are deemed extra-territorial, and not sub-
ject to the local jurisdiction.-^
1 U. S. V. Bevans, 3 Wheat. 337; U. S. v. Bhodes, 1 Abb. U. S. 50.
2 Dynes v. Hoover, 20 How. 65.
3 U. S. V. Bevans, 3 Wheat. 390; The Exchange, 7 Cranch, 116.
14 To make rules for the government and regulation of the
land and naval forces.
Congress may provide for the trial and punishment of
military and naval offenses by courts-martial, without
reference to the judicial powers of Government.
Dynes v. Hoover, 20 How. 65; In re Bogart, 2 Sawy. ^.
15 To provide for calling forth the militia to execute the laws
of the Union, suppress insurrections, and repel invasions ;
The po"wer to call out the militia is limited to three
purposes.! Such authority implies no prohibition to em-
ploy the army and navy for the same purposes, nor that
the militia cannot be used for the suppression of a re-
bellion as well as an insurrection.^ This power is a contin-
uation of the powers enumerated, and a subsidiary grant
to the power to declare war, maintain armies and navies,
and provide for the common defense.^ The power to re-
Sel includes the power to provide against the attempt or
anger of invasion; ^ it is to be exercised in sudden
emergencies, and under circumstances vital to the exist-
Digitized by LaOOQ IC
301 powKBS OF CONGRESS. Art. I, § 8
ence of the Union.s The President is the exclasive and
final judge whether the exigency has ansen,^ and Con-
gress may delegate him to call out the militia, and
make his decision as to the necessity conclusive. "^ The
President may make his request direct to the executive
of the State, or by order directed to any subordinate offi-
cer of the State militia. ^ Congress may make laws to
enforce the call and may inflict penalties for disobedience,
and erect courts for the trial of offenders,^ but cannot sub-
ject State militia to martial law unless in the actual
service of the Government, lo it may 'fix the period at
which the militia enter into service of the United States,
and change their character from State to National mili-
tia.ii A State may make a law providing for the punish-
ment for neglect to obey an order calling forth the mili-
tia. 12 When called out and mustered into the service, they
become National militia, is The States have concurrent
power to call out the militia to aid the General Govern-
ment, ** and in certain emergencies to raise troops to sup-
press insurrection. 16 The authority to suppress rebellion
18 found in the power to suppress insurrection and carry
on war.w When a rebellious State is subdued, Congress
has the right to determine and fix the conditions of return-
ing peace. 1^
1 Kneedler v. Lane, 45 Pa. St. 233.
2 Texas V. White, 7 Wall. 700; Metropolitan Bank v. Van Dyke, 27
N. Y. 400; Kneedler v. Lane, 45 Pa. St. 238.
3 Kneedler v. Lane, 45 Pa. St. 238.
4 Martin v. Mott, 12 Wheat. 19.
5 Lather t. Borden, 7 How. 18.
6 Martin V. Mott, 12 Wheat. 19; Luther v. Borden, 7 How. 18: Van-
derheyden v. Toung, 11 Johns. 150; Diiffield v. Smith, 3 Serg. & B. 590.
7 Martin v. Mott, 12 Wheat. 19; Luther 0. Borden, 7 How. 18.
8 Houston r. Moore, 5 Wheat. 15; 3 Serg. & R. 169.
9 Ck>mmonwealth v. Lish, 3 Serg. & B. 176.
10 Mills V. Martin, 19 Johns. 7.
11 Houston V. Moore, 5 Wheat. 15; 3 Serg. A B. 169.
12 Houston V. Moore, 5 Wheat. 15; 3 Serg. A, B. 160.
13 Houston V. Moore, 5 Wheat. 15; 3 Serg. A B. 169; Martin «. Mott,
12 Wheat. 19.
14 Houston V. Moore, 5 Wheat. 15; 3 Serg. & B. 169.
15 Luther V. Borden, 7 How. 1.
16 Texas V. White, 7 WaU. 701 ; Tyler v. Defrees, 11 Wall. 331.
17 Jacoway v. Denton, 25 Ark. 625; Shorter v. Cobb. 39 Oa. 285.
Digitized by LaOOQ IC
Art. I| § 8 POWERS OF CONGRESS. 1Q2
i'^ To provide for organizing^ armmg, and disciplining the
militia, and for governing such part of them as may 6e,
employed in the service of the United States^ reserving to the
States respectively Vie appointment of the offlcerSj and the
authority of training tJie militia according to the discipline
prescribed by Congress ;
The government of the militia, when in actual service,
is distinct from the power of calling them oiit.^ Organiz-
ing includes the power of determinmg who shall compose
the body of the militia, and the power to lix the age
necessary to render competent.2 After the militia has
entered into the service of the United States, the authority
of the General Government is exclnsive,^ and so far as
Congress has provided for their organization, the power
of the State is excluded;* but if Congress neglect to exer-
cise this power, States have a concurrent authority to do
sOjfi and so long as the militia are acting under the military
jurisdiction of the State to which they belong, the powers
over them are concurrent in the General and State govern-
ments ;S but the State law is subordinate to the paramount
law of the General Government on the same subject.®
Where a State law is to operate on the militia before they
are in actual service, it is valid if it does not conflict witn
the law of Congress.^ The power of Congress is unlim-
ited, except in officering and training the militia. ^ The
President must exercise his command of the militia
through officers duly appointed.^
1 Houston V. Moore, 5 Wheat. 1 ; 3 Serg. & R. 169.
2 Opinions of Justices, 80 Mass. 548.
3 Houston V. Moore, 6 Wlieat. 1 ; 3 Serg. & R. 169.
4 Mills V. Martin, 19 Joiiiis. 7; Houston w. Moore, 5 Wheat. 61; 3
Serg. & R. 169.
5 Houston V. Moore, 6 Wheat. 56; 3 Serg. & R. 169; Luther v. Bor-
den, 7 How. 1.
6 Houston V. Moore, 5 Wheat. 56; 3 Serg. & R. 1^.
7 Opinions of Justices, 80 Mass. 548.
17 To exercise exclusive legislation in all cases whatsoever ^
over such district {not exceeding ten miles sqtjLare) as may, by
cession of particular States, and the acceptance of CongresSf
become the seat of the Government of the United States, and
to exercise like authority over all places purchased by the
consent of the Legislature of the State in which the same .
shall be, for the erection of forts, magazines, arsenals, dock-
yards, and other needful buildings; and
Digitized by LaOOQ IC
103 POWERS OF CONGRESS. Art. I, § 8
District of Columbia.— The inhabitants of the Dis-
trict of Columbia are citizens of the United States, and
may constitutionally have local legislation. i Congress
legislates for the District of Columbia with the same
power as the legislative assemblies of the States,^ and in
Its exercise it acts as the legislature of the Union,8 and
the right of exclusive legislation carries with it the right
of exclusive jurisdiction* in all cases whatsoever, includ-
ing the power of taxation. ^ The failure of Congress to
exercise its power in no way impairs the constitutional
grant.« This clause may be understood as vesting courts
established in the District of Columbia with authority to
issue all process necessary to carry its orders into eflPect."?
In legislating for the District of Columbia, Congress is
bound by the prohibitions of the Constitution. «* The
terms of this section are not limited by the principle that
representation is inseparable from taxation; taxes may
be levied in proportion to the census directed to be taken
by the Constitution.^^ Congress may confer upon the city
of Washington the power to assess for the improvement
or repair oi public streets, i<> or may provide for the con-
struction of an aqueduct drawing its supply of water from
the within limits of a State, and the use and occupancy of
land for that purpose with permission and consent of such
State. 1^ The right to exclusive jurisdiction depends upon
the contract of cession.12 "When land is purchased by the
United States it cannot be sold without special authority
of Congress. ^8 Jurisdiction and authority are limited to
the territory purchased, i"* and in case of retrocession, ju^
risdiction and authority are lost.i» This provision is not
applicable to the Territories. i^
1 U. S. V. Bevans. 3 Wbeat. 388.
2 Mattlngly v. District of Columbia, 6 Amer. Law Beg. 405.
3 Cohens v. Virginia, 6 Wheat. 424.
4 U. S. V. Coryell, 2 Mason, 91 ; Anon. 6 Op. Atty. Gen. 577.
5 Loughborough v. Blake, 5 Wheat. 317.
6 Qulnn's Case, 12 Int. Bev. Bee. 161.
7 U. S. t>. WUliams, 4 Cranch C. C. 393.
8 U. S. p. More, 3 Cranch, 160.
9 Loughborough v. Blake, 5 Wheat. 317.
10 WlUard v, Presbury, 14 Wall. 676.
U BeddaU 0. Bryan. 14 Md. 444.
12 Scott V. Sandforcl, 19 How. 528.
13 U. S. V. Ballroad Br. Co. 6 McLean, 517.
14 People V. Godfrey, 17 Johns. 225.
15 PhiUips t>. Payne, 92 U.S.13L
16 Beynolds v. People, 1 Colo. 179.
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF CONGRESS. IM
Authority over property ceded.— Property is un-
der the exclusive jurisdiction of the United States when
situated in the District of Columbia, or other places ceded
to the United States; i but the Government may own and
use property within the limits of a State without acquir-
ing jurisdiction over th^ territory.^ If the United States
merely acquires land from the owner, it holds it in subor-
dination to the municipal regulations of the place :3 the
purchase itself does not oust the jurisdiction or sover-
eignty of such State over the lands so purchased.* When
the Government holds land otherwise than as sovereign
it holds it only as an individual, ^ as where land is rented
for a temporary purpose,^ but free from State taxation."'
The United States can acquire the right of exclusive leg-
islation within the territorial limits of a State only in the
mode pointed out in the Constitution; 8 places for forts,
magazines, etc., purchased from individuals, require the
consent of the State legislature to give the General Gov-
ernment exclusive jurisdiction.^ Ratification by the State
in addition to purchase is necessary to vest full sover-
eignty in the United States.i<> The consent of the State is
necessary for no other purpose than to vest plenary juris-
diction in the Government, and not to restrict the power
of eminent domain. ii An act of the legislature will not
confer such jurisdiction unless there is some act of accept-
ance on the part of the Government ; 12 but after a cession
to the United States the State jurisdiction ceases, i3 and
the ordinary laws of a State do not prevail within such
territory. 14 The Government has exclusive jurisdiction
over the ceded territory, although the act of cession pro-
vides that civil and criminal process of State courts may
be executed within such territory, is
1 U. S. V. Ames,! Wood. & M. 76; Perry Maniif. Co. 2 Ibid. 468;
Anonymous, 9 Opin. Att. Gen. 621.
2 'Renner v. Bennett, 21 Ohio St. 431.
3 Coramonwealtli v. Young, Brightly, 302; U. 8. v. Crosby,? Cranch,
116.
4 U. S. V. Cornell, 2 Mason, 66; U. S. v. Davis, 5 Ibid. 364; Common-
wealth V. Clary, 8 Mass. 72.
5 Commonwealth p. Young, Brightly, 802; People v. Godfrey, 17
Johns. 225; U. S. v. Traver, 2 Wheel. C. C. 490; People v. Lent, Ibid. 548.
6 U. S. V. Tlemey, 1 Bond, 571 ; Renner v. Bennett, 21 Ohio St. 431.
7 U. S. r. Welse, 2 Wall. Jr. 72; Commonwealth v. Clary, 8 Mass. 72:
Anonymous, 7 Opln. Att. Gen. 628. •
8 U. S. V. Tiemey, 1 Bond, 571; People v. Godfrey, 17 Johns. 226;
Clay r. State, 4 Kans. 49. .r . ,
9 McConnell v. Wilcox, 2 lU. 344.
Digitized by LaOOQ IC
105 po^rERs OF coNORBss. Art. I, § 8
11 £z pane Hebard, 4 itUl. 384; U. S. v. Stahl, McCahon, 206.
12 People V. Lent, 2 Wheel. C. C. 648.
13 People ». Oodfrev, 17 Johns. 225; Gummonwealth r. Tonng,
Brightly, 302; U. S. v. Cornell, 2 Mason, 66.
14 U. S. V. Bevans, 8 Wheat. 336; Cohens v. Virginia, 6 Wlieat. 380;
People P. Godfrey, 17 Johns. 225; Commonwealth v. Clary, 8 Mass. "72;
U. S. r. Ames, 1 Wood. A M. 84.
15 U. S. V. Cornell, 2 Mason, 66; U. S. v. Davis, 5 Ibid. 356; Common-
wealth V. Claiy, 8 Mass. 72; Mitchell v. Tihbetts, 34 Mass. 298; U. S. v.
Travers, 2 Wheel. C. C. 490.
State authority. — Except by compact, or the volun-
tary legislative action of t^e State, lands within its limits
cannot be withdrawn from its ordinary action.! The State
may continue to regulate and punish so far as they have
not delegated the power to t]ie General Government; 2 so
as tocrimes,over wliich the State has never parted with its
jurisdiction. 8 The State authority over crimes exists till
Congress extinguishes it by legislation,^ but no offenses
committed within the limits of territory purchased with
the consent of the State can be punisned in the State
courts. 6 Congress may relinquish jurisdiction over terri-
tory acquired from a State without abandoning the use of
the property. fi The authority over purchased sites binds
all tlie United States, and carries with it the right to
make that power effectual,'' and includes the power of
taxation. 8 The inhabitants thereon are not citizens or
electors of such States,^ nor are they liable to State taxa-
tion on account of such residence. i^ Congress has no -ex-
clusive jurisdiction over land in a State purchased by a
corporation created by act of Congress.^i Jurisdiction
over forts and military reservations in Wyoming is exclu-
sive in the Federal Govemment.12
1 Lowrey v. Weaver, 4 McLean, 32.
2 Ex parte Bollman, 4 Cranch, 75; Ex parte Watkins, 3 Peters, 201:
KendaU v. U. S. 12 Peters, 524; Pollard v. Hagan, 3 How. 212.
3 U. S. r. Bevan, 3 Wheat. 388; U. S. v. Stahl, McCahon, 209; U. S?c.
Ames, 1 Wood. & M. 80; People v. Godfrey, 17 Johns. 226: Clay v. State,
4 Kan. 49; Commonwealth v. Clary, 8 Mass. 75: U. S. v. SaKioo-darcot, 1
Abb. U. S. 383.
4 In re O'Connor, 37 Wis. 379; People v. Lent, 2 Wheel. C. C. 648.
5 Commonwealth p. Clary, 8 Mass. 72 ; U. S. v. Ames, 1 Wood. & M. 76.
6 Renner v. Bennett, 21 Ohio St. 431.
7 Cohens ». Virginia, 6 Wheat. 224.
8 Loughborough v. Blake, 5 Wheat. 317.
9 Commonwealth v. Clary, 8 Mass. 72 ; Sinks v. Beese, 19 Ohio St. 306.
10 Webster v. Seymour, 8 Vt. 135.
U In re O'Connor, 37 Wis. 379.
12 Scott V. U. S. 1 Wyo. 40; Brown v. Ilges, Ibid. 202.
Digitized by LaOOQ IC
Art. I, § 8 POWERS OF CONGRESS. 106
18 To make all laws which shall be necessary and proper for
carrying into execution the foregoing powers^ and all other
jx)wers vested by this Constitution in the Government of the
United States, or in any department or officer thereof.
Incidental po^vers. — Necessity ia the test of inci-
dental power. 1 This clause is an additional power, and
not a restriction on the powers of Congress. 2 The word
"necessary" does not mean absolutely necessary, nor
does it imply the use of only direct means ;8 " necessary **
and "proper" are synonymous,* and require that the
means should he appropriate ;6, a reasonable constraction
to the terms should be given. ^ The choice of means to
carry the powers of Government into effect is left to Con-
gress, which is allowed a wide discretion, but the means
must bear some relation to the fitness of things and to the
end to be accomplished. '' There must be some relation be-
tween the means and the end,8 though the relationship
need not be direct and inmiediate.^ It there is any rela--
tion of the means to the end^ the judiciary is limited to
the inquiry whether the use of such means is repugnant
to any provision of the Constitution. 10 The only limit to
the power of Congress in the use of means is that they
should be appropriate to the end, and if legitimate they
are appropriate." This limitation on the means which
may be used is not extended to the powers which are con-
ferred. 12 Construction, for the purpose of conferring a
power, should be resorted to with great caution ; where
they are expressly given, no other or different means can
be unplied.i'* The Government has the right to employ
freely every means, not prohibited, necessary for the ful-
fillment of its duties, or for its preservation. 1* So, pro-
visions in an act of Congress, when necessary and proper,
are constitutional, i^
} Anderson v. Dunn, 6 Wheat. 215.
2 McCuUoch V. Maryland, 4 Wheat. 316; U. S. v. Fisher, 2 Cranch,
358; Anderson v. Dunn, 6 Wheat. 215; Metropolitan Bank v. Van Dyck,
27 N.Y. 400: Commonwealth ». Morrison, 2 A. K. Marsh. 75; U. S.r.
Marigold, 9 How. 560; Mitchell 0. Steelman, 8 Gal. 363; Dickey v. Tom-
pike Co. 7 Dana, 113.
3 McCulloch V. Maryland, 4 Wheat. 316; U. S. v. Fisher, 2 Cranch,
J58; Metropolitan Bank 1 "- '^ -'- '*" " "" '"" " '"^
Lewis, 6 Binn. 270.
358; Metropolitan Bank v. Van Dyck,27 N. Y. 400; Commonwealth v.
4 Metropolitan Bank v. Van Dyck, 27 N. Y. 400.
5 McCulloch V. Maryland, 4 VHieat. 3lfe.
6 Martin v. Hunter, 1 Wheat. 326; Metropolitan Bankv. Van Dyck,
27 N. Y. 400; Commonwealth v. Morrlspn, 2 A. K. Marsh. 75.
7 Fisher v. Blight, 2 Cranch, 396; McCulloch r. Maryland, 4 Wheat.
316; Gibbons v. Ogden, 9 Wheat. 73; Metropolitan Bank v. Van Dyck,
27 N. Y. 400; U. S. v. Marigold, 9 How. 560; Lick v. Faulkner, 25 Cat 404.
Digitized by LaOOQ IC
107 POWERS OF CONGRESS. Art I, § 8
8 I<egal Tender Cases, 12 WaU. 4.'$7.
9 I<egal Tender Cases, 12 Wall. 457. But see U. S. v. Bailey, 1 Mc*
Lean, 234.
10 Metropolitan Bank v. Van Dyck, 27 N. Y. 400.
11 U. S. V. Bhodes, 1 Abb. U. S. 49; U. S. v. Fox, 6 Am. L. Bep. 188,
241.
12 Gibbons v. Ogden, 9 Wheat. 1 ; 17 Johns. 484; 4 Johns. Ch. 150, 175.
13 Ex parte Beavins, 33 N. H. 89.
14 liBgal Tender Cases, 12 WaU. 487.
15 U. S. V. Pusey, 6 Bank. Reg. 285.
Enumeration of means. — The Constitution does not
profess to enumerate the means by which the power it
confers may be executed. ^ If the means are appropriate
the necessity is to be determined by Congress alone.2 . If
the Constitution guarantees a right, the National Govern-
ment is clothed with authority to enforce it. 8 It is not
limited bjr the express powers granted, but means are
given by just and necessary implication. * One method
of enforcement may be applicable to one fundamental
right, but not to another. s A wide discretion to deter-
mme what is necessary was left to Congress. ^ The instru-
ments of government are its oificers — executive, legisla-
tive, and judicial — and public buildings occupied for the
use of government.' The power of creating a corporation
is an incident to the powers expressly given. 8 Congress
may make or authorize contracts for services. ^ The power
to prescribe an oath of office is an incidental power. i*
Congress may make the United States a preferred cred-
itor in cases of insolvency, ^i or may exempt from State
taxation the means employed by Government in the exer-
cise of its powers, ^2 as national securities, is or on salaries
of public officers,^* or it may levy a tax on State bank-
notes in circulation, ^s or it may provide for punishment
of offenses which obstruct or prevent commerce, '<^ or for
bringing into the country counterfeit foreign coins, i' or it
may secure the receipt of pensions free from unreason-
able tolls and exactions, is
1 McCulloch V. Md. 4 Wheat. 316.
2 McCulloch V. Md. 4 Wheat. 316; Metropolitan Bank v. Van Dyck,
27N.Y.400.
8 Prigffi;. Commonwealth, 16 Peters, 539; U. S. t>. Crulkshank, 92 U.
S.542; 1 Woods, 308.
4 Prigg V. Commonwealth, 16 Peters, 539; Henry v. Lowell, 16 Barb.
268.
5 TJ. S. V. Crulkshank, 92 U. S. 542; 1 Woods, 308.
6 Legal Tender Cases, 12 Wall. 534; Low v. Centr. Pac. B. B. Co. 52
cm. 63.
7 Sweattv. Boston Ac. B. B. Co. 5 Bank. Beg. 249.
Digitized by LaOOQ IC
Art. I, § 8 POWEBS OF GONOBESB. 106
8 McGullocli V. Maryland, 4 Wheat. 316; MagiU v. Parsons, 4 Ck>im.
817. But see Commonwealth v. Morrison, 2 A. K. Marsh. 75.'
9 Thompson v. Pacific K. B. Co. 9 Wall. 579 ; U. S. v. Maurice, 2 Brock,
96.
10 MetropoUtan Bank v. Van Dyck, 27 N. Y. 400.
11 TJ. S. V. Fisher, 2 Cranch, 358.
12 Weston t>. Charleston, 2 Peters, 449; Thompson v. Pac. &. R. Co. 9
Wall. 579; Bank of Commerce v. Tax Commissioners, 2 Black, 620.
13 Bank of Conmierce v. Tax Commrs. 2 Black, 620 ; Sweatt v. Boston
&o. B. B. Co. 5 Bank. Beg. 249.
14 Sweatt V. Boston &c. B. B. Co. 5 Bank. Beg. 249.
15 Legal Tender Cases, 12 Wall. 543 ; Yeazie Bank v. Fenno, 8 Wall. 533.
16 TJ. S. V. Coombs, 12 Peters, 78.
17 U. S. V. Marigold, 9 How. 560.
18 U. S. t>. Fairchllds, 1 Abb. U. S. 74; U. S. v. Marks, 2 Abb. U. S.54i.
Enumeration of means.— Any law not prohibited,
and in any degree a means conducive to the execution of
any or all of the powers of Congress, comes within this
clause, as a law creating a national bank,i or a law fixing
the rate of interest to be charged by such banks, 2 or pre-
scribing a penalty for taking usurious interest,^ or making
provisions which tend to promote the efficiency of such
banks,^ as by providing for the safety of remittances by
bills or otherwise. 6 If it be necessary to render treasury
notes a legal tender for all debts, it may do so. 6 Congress
may use all known and appropriate means for effectually
collecting and disbursing the revenue, ^ or to protect rev-
enue collectors, men in postal service, etc.,8 and in case
of the death of the collector to provide that the Govern-
ment shall be first paid out of his estate. » So, Congress
has power to create, define, and punish crimes or offenses
when necessary for effectuating the objects of govern-
ment. 10 The power to punish is incidental to constitu-
tional powers of sovereignty. ^i Congress may make laws
for carrying into execution all the judgments which the
judicial department has power to pronounce ;i2 or may
regulate proceedings on execution ;i8 or may delegate to
courts the power 01 altering the proceedings ;i* or it may
prescribe a limitation for actions for damages done under
the authority of the President. is When a Territory be-
comes a State, Congress may designate the court to which
records shall be transferred, and how judgments shall be
enforced and reviewed.^^
lift. ?ilH°™ "I'P^JJ,*^^ U« S. 9 ^Vheat. 738; McCulloch v. Md. 4 Wheat.
316; aietropohtan Bk. t>. Van Dyck, 27 N. J. 400.
2 Central Bk. ». Pratt, 115 Mass. 439.
Digitized by LaOOQ IC
109 unzrAiiox of powbbs. Art. I, § 9
8 Flist Nat. Bk. V. GNu-lingboase, 32 Ohio St. 4d2; Gentr. Nat. Bk. v.
Pratt, 115 Mass. 546; Fanners' Mat. Bank v. Dearing, 91 U. S. 39. Con-
fra, first Nat. Bk. v. Lamb, 50 N. Y. 65».
4 Chesapeake Bk. v. First Nat. Bk. 40 Md. 269.
5 U. S. V. Fisher, 2 Cranch, 358; 1 Wash. 0. C. 4.
6 Legal Tender Cases, 12 Wall. 539: Metropolitan Bk. v. Van I>7<fl[,
37 N. Tr400; U. 8. v. Fisher, 2 Cranch, 358; 1 Wash. C. C. 4. On<;ontract8
made before Itspassage as well as after. Legal Tender Cases, 12 WalL
638. ovemiling Hepbnm v. Griswold, 8 WalL 603.
7 MnrraTv- Hoboken Ac. Co. 18 How. 272; Sweatt v. Boston H. A; £.
B. B. Co. 5 Bank Beg. 249.
Dngan v. U. S. 3 Wheat. 179; U. S. v. Bevans, Ibid. 388; The Ex-
oge, 7 Cranch, 116: 2 Peters. 439; Osbom v. Bk. of U. S. 9 Wheat.
. S. V, Tlngey, 5 Peters, 115.
Commonwealth v. Lewis, 6 Binn. 266.
U. S. V, WorraU, 2 DaU. 384; U. S. v. Marigold, 9 How. 560.
McCnlloch V. Maryland, 4 Wheat. 316.
Bk. of U. S. V. Halstead, 10 Wheat. 51.
Bk. of U. 8. V. Halstead. 10 Wheat. 51.
Wayman v. Southard, 10 Wheat. 1; Bk. of U. S. v, Halstead. 10
Wheat 51.
15 Mulligan v. Hovey, 3 Blss. 13.
16 Hunt t>. Palas o. How. 589.
SKOTION 9.
Zdmitatian cf the powers cf Cangreas.
1. Migration or importation of persons.
2. Habeat corpus not to be suspended.
3. Attainder and ex post /octo laws prohibited.
4. Capitation and direct taxes.
5. Taxation on exports.
6. Commercial regulations.
7. Public moneys and accounts.
8. Titles of nobility. Presents, ofllces, etc.
8eo. 9. "^The migration or importation of such persons
CM any of the States now existing shall think proper to admit,
shaU not he prohibited by the Congress prior to the year one
thousand eight hundred and eight, hut a tax or duty may he
imposed on such importation, not exceeding ten dollars for
each person.
TlliA secUon has no application to State governments.^
It is a limitation on the powers of the Greneral Govern-
ment. rather than a grant of power^s as the possession
of this power during a limited time oannot be admitted
to apply to the. possession of any other power. ^ Migra-
tion applies to voluntary as well as to involuntary arriv-
als.^ Passengers can never be subject to State laws until
they become a portion of the population of the State.^
DxsTT Fed. Cok.— lO.
Digitized by LaOOQ IC
Art. I, § 9 LIMITATION OP POWERS. 110
As to the legislation by Congress after the period desig-
nated, see. 8 Exclusive power is vested in Congress since
January 1st, 1808.7
1 Butler V. Hopper, 1 Wash. C. C. 499.
2 Passenger Cases, 7 How. 641 ; 45 Mass. 282 ; Wilson t>. U. S. 1 Brock.
428; Butler v. Hopper, 1 Wash. 0. 0. 499; U. S. v. Llbby, 1 Wood. & M.
3 Gibbons v. Ogden, 9 Wheat. 230.
4 Gibbons v. Ogden, 9 Wheat. 230.
5 Passenger Cases, 7 How. 283; 45 Mass. 282.
6 U. S. v. Preston, 3 Peters, 65.
7 Savory v. Caroline, 20 Ala. 19.
2 The privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion the
public safety may require it.
The privilege of the writ shall not be suspended, thar
is, the privilege of having it issued, and the case heard
and determined ;i the writ means, the writ ad subjicien-
dum.^ It is a writ of right,^ the privilege of having judi-
cial inquiry made into the cause of imprisonment, and a
suspension precludes all further proceedings on a writ
issued. 4 The privilege of the writ can only be suspended
by act of Congress. ^ The power is given to Congress to
suspend the writ in cases of rebellion or invasion, and
Congress is the exclusive judge of when the exigency
arises.6 The President cannot suspend the writ, but may
be authorized by act of Congress to do so.^ A statute
authorizing the P'resident to suspend the writ, when in his
judgment the public safety requires it, is valid.s The
Secretary of War has no authority to suspend the privilege
of the writ, 9 nor can the commander of a military district. ^^
There is a distinction between the suspension of the writ
and the ipso facto suspension which takes place wherever
martial lawactuallyexists.il Congress has no power to
suspend the issuing of the writ by a State court, i^ but it
may provide that an officer shall not be liable for an arrest
made during the suspension of the privilege of the writ.i*
The suspension of the privilege of the writ is an express
permission and direction from Congress to arrest or im-
prison all persons who may be dangerous to the common
weal; 14 it simply denies to one arrested the privilege to
obtain his liberty; is it does not suspend the duty to issue
the writ,i6 but upon its return it will be dismissed with-
out inquiry into the validity of the arrest.i^ Courts will
take judicial notice of the close of the Bebellion, and with
Digitized by LaOOQ IC
11] UMITATION OF POWERS. Art. I, § 9
it the end of the sasp^nsion of the writ.i8 If the term
habeas corpus had a well-known meaning, the Convention
had reference to that meaning in frammg the Gonstitu-
tion.19
1 Macready V. Wilcox, 33 Conn. 321.
2 The Santisslma Trinidad, 7 Wheat. 905; Martin v. Mott, 12 Wheat.
29; Luther v. Borden, 7 How. 1; Fleming v. Page, 9 How. 615; GroM v.
Harrison, 10 How. 189.
3 Tates o. Lansing, 5 Johns. 282.
4 £x parte Fagan, 2 Sprague, 91 ; Ex parte Dmm, 25 How. Pr. 467.
5 £x parte Bollman, 4 Cranch, 75; Ex parte Merryman, Taney, 267;
24 Law Bep. 78; Jones v. Seward, 3 Grant, 481 : Griffin «. Wilcox, 21 Ind.
370 ; In re Kemp, 16 Wis. 359. But see McQuillan's Case, 9 Pitts. L. Int.
fl; 27 Law Bep. 129; Ex parte Field, 5 Blatchf . 82.
6 Martin v. Mott, 12 Wheat. 19; Ex parte Merryman, Taney, 246; 24
Law Bep. 78; McCaU v. McDowell, Deady, 233; 1 Abb. U. S. 212; Ex
parte MQllgan, 4 WaU. 115.
7 £xparteMimgan,4WaU.114.
8 McCaU V. McDowell, Deady, 238; 1 Abb. U. S. 212; In re Oliver, 17
Wis. 681.
9 Ex parte Field, 5 Blatchf . 63.
10 Ex parte Field, 5 Blatchf. 63; Johnson v. Duncan, 3 Mart. 530.
11 In re Kemp, 16 Wis. 859.
12 Griffin V. WUcox, 21 Ind. 370; Kneedler v. Lane, 45 Pa. St. 238.
13 McCaU V, McDowell, Deady, 233; 1 Abb. U. S. 212.
14 McCaU V. McDoweU, Deady, 233; 1 Abb. U. & 212.
15 Ex parte Milligan, 4 WaU. 115.
16 Ex parte Milligan, 4 Wall. 130.
17 Kulp V. Bicketts, 3 Grant, 420: Yallandigham's Trial, 259; 1 Wall.
243.
18 Cozzens 9. Frink, 13 Am. L. B. 700.
19 Calder v. Bull, 3 Wall. 386; Watson v. Mercer, 8 Peters, 88: Carpen-
ter v. Pennsylvania, 17 How. 456; U. S. v. Wilson, 7 Peters, 150; IT. S. v.
Harris, 1 Abb. U. 8. 115.
«i\ro hill of attainder or ex post facto law shall he passed.
A bill of attainder is a legislative act which inflicts
punishment without a judicial trial. ^ It may inflict the
panishment absolutely or conditionally.^ If the terms
"bill of attainder*' and ^* ex post facto*' had a well-known
meaning at the time of framing the Constitution, the Con-
vention had reference to that meaning.8 A constitution
requiring expurgation by a provision for a stringent test-
oath, is a bill of attainder. ^ So, a provision in a statute
for a stringent t«8t-oath, operating the exclusion from
any profession or avocation of life for past conduct, is a
punishment for such conduct, and partakes of the nature
Digitized by LaOOQ IC
Art L S 9 ' umTATioir of powiebs. 112
of a bill of pains and penalties, and subject to the consti-
tntional innlbition^ as a law excluding from practice at-
torneys at law who participated in the late Rebellion.* A
bill of attainder may affect the life of an individual, or
may confiscate his property, or both.^ A statute which
makes the non-payment of taxes evidence of participation
in rebellion and fbtfeits the land absolutely, is a Dill of
attainder; ^ but not a statute providing for a forfeiture for
a violation of the revenue law;> nor a statute imposing a
forfeiture of citizenship for continuance of desertion after
proclamation and trial by court-martial to enforce the
penalty.i^ A provision exempting an o£Eleer from action
for acts done by order of lawful military superiors is not
a bill of attainder.il
1 Cnminlngs v. MIbsoutI, 4 WalL 277; Ex parte Garland, Ibid. 3SS; lb
re De Glacomo, 12 Blatclif . 401.
2 Oalnes v. Buf ord, 1 Dana, 510.
Z V. S. V. Harris, 1 Abb. V. S. 115: Calder v. BnO, S I>alL 386; U. S.
V. Wilson, 7 Peters, 150: Watson «. Metcer, 8 Peters, 88; Carpenter v.
Pennsylvania, 17 How. 456.
4 Gommlngs V. Missouri, 4 Wall. 277.
5 Ex parte Garland, 4 WalL 333; Pierce «. Carokadon, 16 WalL 894;
Cammings v. Missouri, 4 WalL 320; Klueger v. Missouri, 13 WalL 257.
6 Ex parte Crarland, 4 Wall. 333.
7 Fletcher t». Peck, 6 Cranch, 138,
8 Martin v. Snowden, 18 Gratt. 100.
9 U. S. V. A DistiUery, 2 Abb. U. S. Ittt.
10 Gotchens «. Matheson, 40 How. Pr. 97; 86 Barb. 162.
11 Drehman V. Stefle, 8 Wan. 595.
Ez post facto laws. — Every law which makes an
act innocent before the law a crime, and punishes, or that
aggravates a crime » and makes it greater than it was when
committed, or that enhances the punishment, or that pro-
vides for less evidence for conviction, is an ex post facto
law;^ so, a statute which attempts to validate a puntoh-
ment which would otherwise be illegal is an ex post facto
law;3 so, a statute excluding a person from the practice
of his profession for acts committed prior to the passage
thereof is an ex post facto law.s But a statute makiss
treasury notes a lesal tender is not an ex post facto lawj^
nor a statute whicn imposes forfeiture of citizenship f (ur
continuance of desertion after assurance of pardon;^ nor
a treaty for extradition of criminals, although it provides
for crimes antecedently committed.<^ This provision ap-
plies only to criminal laws.? An act of Congress protect-
ing from civil process persons amenable to i^osecution is
not unconstitutional.^
Digitized by LaOOQ IC
113 LIMITATION OF POWEB8. Art. Z, g 9
2 In re Murphy, 1 Woolw. 141.
3 ExparteGarland,4WalI. 333: Ex parte Law, 35 Ga. 285; £z parte
BaaEter,l4 Am. L. Beg. 159. *
4 Metropolitan Bank v. Van Dyck, 27 K. T. 400.
5 Ootebens v. Matheson, 40 How. Fr. 97 ; 58 Barb. U2.
6 ExparteDeOlacomo. r2Blatchf. 391.
7 Galder v. Bull, 3 Dall. 390 ; Fletcher v. Feck, « Granch, 87 ; Qgden v.
Sannclers, 12 Wheat. 213; Satterlee v. Mattbewson, 2 Peters. 380; Wat-
son «. Mercer, 8 Peters, LIO; Carpenter v. Pennsylvania, 17 How. 463;
Bx parte Garland, 4 Wall. SSS^jLo^e p. New Orleans, 4 Wall. 172:
Society for Prop, of Gosp. v. WheAer, 2 GaU. 105; U. S. v. HaU, 6
Cranch, 171; 2 Wash. C. G. 366; Commonwealth v. Lewis, 6 Blnn. 271;
n. 8. v. Hughes, 21 Int. Rev. Bee. 84; Thompson v. Alger, 12 Met. 428;
MeCormlek v. Pickering, 4 N. Y. 376; Bangber v. N^son, 9 Ga. 299;
Bridgeport v. HubbeU, 5 Conn. 240.
8 In re Murphy, Wooiw. 148.
See Art. I, Sec. 10, (1) and note.
^ yo capitation or other direct tax shall he laid, utdesB in
proportion to the ceneus or enumeration hereinb^ore directed
to be taken.
A capitation tax is a direct tax,i '* direct taxes"
oomprehending only capitation taxes and taxes on lands,
and perhaps taxes on personal property by general valn-
aition and assessment.^ A tax on income is not a capita-'
tion or other direct tax.* A tax on bank circulation is
aot a direct tax,^ nor a tax on the business of an insur-
ance company,* nor a tax on carriages kept for private
nae.* Direct taxes must be laid by the rule of apportion-
ment ?
1 HyltoAv.n. S.3Dan.l71.
2 Teazle Bank v. Fenno, 8 Wall. 538; Loaghl)oroagh v. Blake, 5
Iffheat 317 ; Hylton v. U. S. 3 DaU. 171.
5 Clark V. Sickel, 14 Int. Bev. Bee. 6; Smedberry v, Bentley, 21 Ibid.
4 Veazie Bank V. Fenno, 8 Wall. 533.
» Pacific Ins. Co. «. Soule, 7 WaU. 488.
6 Hylton V. U.S. 8 DaU. 171.
7 license Tax Cases, 5 Wall. 471.
SeeAxtlelel.Sec.2.(S).
Digitized by LaOOQ IC
Art. I, § 9 LIMITATION OF POWERS. 114
fi^o «aa or duty shall be laid on articles exported from any
State.
The power of Congress to interfere with exports is
taken away by this provision. ^ A charge for a stamp on
a package of tobacco intended for export, made as a means
to prevent fraud, is not a tax on exports.^ A statute reg-
ulating commercial intercourse with the insurrectionary
States and imposing duties thereon, is valid, s
1 Hylton V. U. S. 3 DaU. 171 : U. S. «. The WUliam. 3 HaU's L. J. 255.
2 Pace V. Burgess, 92 U. S. 372.
3 Folsomv. U. S.4Ct. C1.366.
6^0 preference shall he given by any regtUation of com-
merce or revenue to the ports of one State over those of an-
other; nor shall vessels bound to, or from^ one Sta^^ be
obliged to enter, clear, or pay duties in another.
Congress is restrained from fostering or oppressing
one ^ort, or the commerce of one State, to the end of de-
stroying equality and uniformity as to levies of contribu-
tions from foreign commerce. ^ The privileges and im-
munities to vessels entering or clearing from the ports of
a State must be common and equal in all the i)orts of the
several States. '-^ The provision is a limitation on the
power of Congress to regulate commerce ;8 it was intended
to prevent vessels from being obliged to enter, clear, or
pay duties in any State other than that to or from which
they should be bound.* What is forbidden is not discrim-
ination between individual ports within the same or dif-
ferent States, but discrimination between States, as Con-
gress may make a port in one State a port of entry, while
It refuses to make a port in another State a port of entry.*
It does not apply to incidental advantages resulting from
legislation connected with commerce.<' It does not affect
the States in the regulation of their domestic affairs :^ as
to a State tax upon an article brought into the State from
another State ;<^ or a tax upon capital invested in ships ;*
or a tax on money, although it is continuously invested
in cotton purchased for exportation ji* but it is a prohibi-
tion upon the State to destroy, by legislation, the com-
mercial equality between the States. i^ This clause is not
a restriction upon the legislation of the States in the reg-
ulation of their internal police, as in the inspection of
vessels. 12 So, State pilot laws are not in conflict, because
Digitized by LaOOQ IC
115 ' LIMITATION OF POWEBS. Art. I, § 9
they neither give a preference of one port over another,
nor require vessels to pay duties. ^^ ''Of another" and
"duties on another," relate to commerce and naviga^
tion."
1 Mmm V. nilnols, 94 HI. 113 ; State v. Charleston, 10 BIch. 240
2 Pennsylvania v. Wheeling & B. Br. Co. 18 How. 421.
3 Passenger Cases, 7 How. 283; 45 Mass. 282; Alexander v. B. B. Co.
3 Strob. 594.
4 U. S. V. The WilUam, 2 Hall's L. J. 255.
5 Pennsylvania v. Wheeling & B. Br. Co. 18 How. 421
6 Pennsylvania v. Wheeling & B. Br. Co. 18 How. 421.
7 Mann v. Illinois, 94 HI. 113; Baker v. Wise. 16 Gratt. 139.
8 State V. Charleston, 10 Bich. 240.
9 State V. Charleston, 10 Bich. 240.
10 People V. Tax Commissioners, 17 N. Y. Supr. 255.
11 Passenger Cases, 7 How. 283; 45 Mass. 282; Alexander v. B. B. Co
3 Strob. 594.
12 Baker v. Wise, 16 Oratt. 139.
13 Cooley V. Port Wardens, 12 How. 299; Pennsylvania v. Wheeling ^
B. Br. Co. 18 How. 421.
14 Gibbons V. Ogden, 9 Wheat. 1.
*fNo money shall he drawn from the treasury hut in con^
sequence of appropriations made by law; and a regular
statement and account of the receipts and expenditures of all
public m^oney shall he published from time to time.
Anonymoos, 3 Opin. Att. Gen. 13.
8 jYo title of nohUity shall he granted by the United States :
And no person fioldinguany offlce of profit or trust under
them shall, without the consent of the Congress, accept of any
present, emolument, office, or title, of any kind whatever,
from any king, prince, or foreign State.
A marshal of the United States cannot at the same
time hold the office of commercial agent of a foreign
nation.
6 0pia.Att.-G«n.4C9.
Digitized by LaOOQ IC
Art. !» § 10 LIMITATION OF POWEBS. • 116
Sec. 10. 1 No State shall enter into any treaty^ alliance^
or coTtfederation: grant letters of marque and reprisal; coin
money; emit bills of credit; make anything but gold and
silver coin a tender in payment of debts ; pass any bill of
attainder^ ex post facto law^ or law impairing the obligation
of contracts; or grant any title of nobility.
Secession and confederation.— The Union of the
States is perpetual and indif soluble. ^ A State has no right
to secede.^ The Ordinance of Secession and all acts to
give it effect are null and void.^ It did not annul or re-
peal the constitution and laws then in force ;^ nor did it
suspend or destroy the existence of the State government.
It continues to exist dejurCf and its acts are as valid and
binding as if no attempt at secession had been made.^
A State can have no political existence outside and inde-
pendent of the Constitution of the United States. ^ The
attempt of a State to separate from the Union does not
destroy its identity as a State, nor free it from the bind-
ing force of the Constitution of the United States. ? The
Ordinance of Secession did not abrogate the Constitution
nor release citizens from their obligation of loyalty to the
Government of the United States. ^ The constitutional
obligations and duties of a State are not affected bjr its
Tebellion.d At no time were the rebellious States out of the
Union. i<> There is no law, State or National, by which the
Government of the United States is bound to recognize
as valid the public or political action of a State engaged
in rebellion.^i The constitution in force before the Or-
dinance of Secession continues in force after the ovei^
throw of the Bebellion,^^ and statutes adopted by a law-
ful government will be deemed valid. ^^ The govern-
ment of a rebellious State is not a de facto government. ^^
Acts in furtherance of rebellion are void;^^ but acts
necessary to peace and good government are valid. ^* All
acts of a State in rebeUion are binding upon the State,
except such as were in aid of the Rebellion. ^^ Statutes
intended to promote good order and welfare may be en-
forced.^^ when 'a State by her acts sets aside her State
government, and constitutes and establishes a new one,
connected with another so-called central government, her
practical relations to the Union were suspended; but tbey
did not for a moment effect a separation from the Union.'*
The late so-called Confederate government never reached
the dignity of a (2e facto government, and was without
the authority to coin money, emit bills of credit, etc.**
The government of the Confederation had no existence,
except as organized treason.^^ It was not a de facto gov-
Digitized by LaOOQ IC
117 liHOTATION OF POWERS. Art. I, § 10
emment in the sense that its acts are entitled to jadicial
recognition as valid.^ It could not divest any right or
property of the United States.^ It had no right to se-
questrate the property of a citizen of the United States
as an '* alien enemy."** it could not take, hold, or convey
a valid title to property, real or personal.^ The acts of
confiscation of the Confederate government were null and
void.28 The State is not liable tor services rendered to a
rebellious govemment.3<r All contracts made in and of
the Rebellion are void.^^ An obligation incurred by a
corporation in aid of the Rebellion cannot be enforced.^
Notes and bonds issued by a State while in rebellion are
not binding.^ Bonds and treasury notes of the Confeder-
ate States are not enforceable.^^ Treasury notes issued
by a State in aid of rebellion are void.<> Charters granted
by a State in rebellion are void.^
1 Texas 9. White, 7 Wall. 700.
2 White V. Hart, 13 WaU. 646; Sequestration Cases, 30 Tex. 688:
Gbancely v. BaUer. 37 Ga. S82; Cent. S.1L Co. «. Ward, 37 Oa. 6iff ; Hood
«. Maxwell, IW.Va. 219.
3 Keith v. Clark, 97 U. S. 461 ; Texas v. White. 7 WaU. 700; Pennywit
t. Foote,27 Ohio St. 600; U. S. v. Cathcart, 1 Bond, ft56; U. S. t>. Momson,
Cbase, 621.
4 Harlan V. State, 41 Miss. 566.
5 Hawkins v. Filkins, 24 Ark. 286; White v. Cannon, 6 WaU. 443;
Harlan v. St. 41 Miss. 666; St. v. Seais, Fhill. N. C. 146.
« Pennv. Tollison,26Ark.645.
7 Keith V. Clark, 97 U. S. 461.
8 v. S.«. Cathcart,! Bond, 696.
9 White V, Hart, 13 WaU. 646; Homestead Cases, 23 Gratt. 266.
10 White «. Hart, 13 WaU. 646; Keith v. Clark, 97 U. S. 461.
11 Thompson v. Mankin, 26 Ark. 686.
12 Scmggs V. HantsvUle, 45 Ala. 220; President v. State, Ibid. 399.
13 Beynolds V. Taylor, 43 Ala. 420.
14 Penn v. TolUson, 96 Ark. 545; Thompson v. Mankin, 26 Ark. 586,
Thomas v. Taylor, 42 Miss. 651.
15 Texas «. White, 7 WalL 700; Hatdi «. Bnrrooghs, 1 Woods, 439.
1< Texas V. White, 7 Wall. 700; Seqnestratlon Cases, 30 Tex. 688;
Cfai«»peU V. Williamson, 49 Ala. 153; Cook t). OUver, 1 Woods, 437.
17 Keith V. Clark, 97 U. S. 469; Horn v. Lockhart. 17 WaU. 570; Sprott
«. a. 8. 20 WaU. 469; Home Ins. Co. v. U. S. 8 Ct CL 449; Watson v.
Stone. 40 Ala. 451.
18 HiU V. Boyland, 40 Miss. 618 ; Buchanan v. Smith, 43 Miss. 90; Wal-
Yat» V. State, 33 Tex. 445.
19 Shortridge v. Macon, Chase, 136.
29 KcCracken «. Poole, 19 La. An. 359; BaOey v. MUner, 39 Gft. 330;
Tliomburg v. Harris, 3 Cold. 157.
21 Sprott V. U.S. 20 WaU. 459.
Digitized by LaOOQ IC
Art. I, § 10 lilMITATION OF POWEBS. 118
22 Keppel v. Petersburg R. R. Go. Chase, 167.
23 U. S. V. Kechler, 9 Wall. 83.
24 Central &c. B. B. Co. v. Ward, 37 6a. 515; Sequestration Cases, 30
Tex. 638: Vance v. Bnrtls. 3d Tex. 88; Knox v. Lee, 12 WaU. 457: Short-
ridge V. Macon, Chase, 136.
25 Sprott V. U. S. 20 Wall. 459.
26 Keppel v. Petereburg &c. B. B. Co. Chase, 167; Penn. v. Tolllson,
26 Ark. 545; Thompson v. Mankln, 26 Ark. 586; Tlnuns v. Orace, 26 Ark.
598; Perdicaris v. Charleston Gas Lt. Co. Chase, 435.
27 Buck V. Yasser, 47 Miss. 551-, Chlsholm v. Colman, 43 Ala. 204.
28 Keith V. Clark, 97 U. S. 464; Hanauer v. Doane, 12 WaU. 342.
29 Bibb V. Commrs. 44 Ala. 119; Evans v. Bichmond, Chase, 651.
30 Hanauer t. Woodruff, 15 Wall. 439: Thomas t;. Taylor, 42 Miss. 651 ;
Leak v. Commrs. 64 N. C. 132; Band v. State. 65 N. C. 194.
31 Bay V. Thompson, 43 Ala. 434; Irvine v. Armstead, 46 Ala. 363;
Martin v. Hewitt, 44 Ala. 418; Texas v. Hardenberg, 10 WaU. 68.
32 Thomas v. Taylor, 42 Miss. 651.
33 U. S. V. Home Ins. Co. 22 Wall. 89.
Bills of credit.— A bill of credit is a paper issued by
a sovereign power, containing a pledge of its faith, and
designed to circulate as money. ^ It must be issued by a
State on its faith and credit, desired to circulate as
money,^ receivable for all debts and taxes, salaries and
f ees,8 and although it is not made a legal tender.* The
emission is a bill of credit if the intention is to create a
currency.'* The intent is the intent of the legislature, to
be deduced from its acts alone.^ It may comprehend any
instrument by which the State eng^ages to pay money at a
future day," and may cover a certificate of debt^ or notes
of a State bank.^ A State cannot, by indirect means, or i
any device, emit bills of credit, i® Instruments executed,
binding a St^te to pay money at a future day for services
rendered or for monejr borrowed, are not bills of credit ;ii
nor is a treasury note issued as evidence of a loan, if not
intended as a circulating medium ;i^ nor an auditor's war-
rant issued according to law for the payment of a demand
against theState.^^ States may incorporate banks, and
their notes are not bills of credit,^* not even if the State
pledges its credit for their payment, i* nor though the
bank is owned by the State, and the officers give bonds to
the State for the faithful performance of their duties. ^^
Where a State becomes a stockholder it imparts none of
. its sovereignty to the corporation. ^^ States and municipal
corporations may borrow money and give proper securi-
ties therefor; ^^ so, a State may authorize a municipal cor-
poration to issue certificates of indebtedness,!^ or treasury
notes made receivable for all debts due, and to pledge its
d by Google
119 UMITATION OF POWERS. Art. I, § 10
real estate for their redemption,2o but certificates of in-
debtedness for the payment of current expenses to be re-
ceivable for all State taxes, etc., are bills of credit, and
void.2i Confederate notes were not bills of credit.23
The State governments organized bv force in the Rebel-
lion could not emit bills of credit. 28 A bill of credit is
not a good consideration for a contract. 2^
1 Craig V. Missouri, 4 Peters, 431; Briscoe v. BIc of Ky. 11 Peters.
257; Woodruff v. Trapnall, 10 How. 190; BaUey ». Milner, 1 Abb. U. S,
2H3; City Bk. v. Mahan, 21 La. An. 751; State v. Compt. Gten. 4 S. C. 185;
Auditor «. Treasurer, Ibid. 311.
2 Curran v. Arkansas, 15 How. 304; 12 Ark. 321; Indiana v. Woram,
6 Hill, ^.
3 Craig V. Missouri, 4 Peters, 431 ; In re Milner, 1 Bank Beg. 107.
4 Craig V. Missouri, 4 Peters, 431: Byrne v. Missouri, 8 Peters, 40;
Billis V. State,2 McCord, 12; McFarland v. State Bank, 4 Ark. 44.
5 State V. Hoge, 4 Rich. (N. S.) 185; State v. Auditor, Ibid. 311 ; Craig
V. Missouri, 4 Peters, 431.
6 Payandv. State, 13 Miss. 491.
7 Craig V. Missouri, 4 Peters, 410; Byrne v. Missouri, 8 Peters, 40.
8 Craig V. Missouri, 4 Peters, 410; Byrne v. Missouri, 8 Peters. 40.
But see State v. Cardozo, 5 Rich. (N. S.) 297.
9 Briscoe v. Bank of Ky. 11 Peters, 257; Darrlngton v. Bank of Ala-
bama, 13 How. 12.
10 Briscoe v. Bank of Ky. 11 Peters, 341, explaining Bank of Ky. v.
Wister, 2 Peters, 318; Bank v. Clarke, 4 Mo. 59; Griffltli v. Bank, 4
Mo. 255.
11 Craig V. Missouri, 4 Peters, 410; Payaud v. State, 13 Miss. 491.
12 Oreen v. Sizer, 40 Miss. 530.
13 Payaud v. State, 13 Miss. 491.
14 Briscoe p. Bank of Ky. 11 Peters, 431; Woodruff v. Trapnall, 10
How. 190; Darrlngton v. Bank of Ala. 13 How. 12; Curran v. Arkansas,
15 How. 304; Veazie Bank v. Fenno, 8 Wall. 553; Owen v. Bi-ancli Bank,
3 Ala. 258; McFarland to. State Bank, 4 Ark. 44; Bank p. Spilman. 3
Dana. 150: Lampton v. Bank. 2 Lttt. 300; Billis v. State, 2 McCord, 12:
Craighead v. Bank, 1 Meigs. 199 ; State v. Calvin, B. M. Charlt. 151. And
see Vermont Bank v. Porter, 5 Day, 316.
15 Darrlngton v. Bank of Alabama, 13 How. 16.
16 Billis V. State, 2 McCord, 12. Contra, Linn v. State Bank, 3 111. 87.
17 Briscoe t>. Bank of Kentucky, 1 Peters, 257: 7 J. J. Marsh. 349;
Woodruff p. Trapnall, 10 How. 190; 8 Ark. 236: Darrlngton p. Branch
Bank of Alabama, 13 How. 12; Owen p. Branch Bank. 3 Ala. 258; Mc-
Farland p. State Bank, 4 Ark. 44; Central Bank p. Little, 11 6a. 346;
Billis V. State, 2 McCord, 12.
18 McCoy p. Washington Co. 3 Wall. Jr. 381.
19 Mayor p. State, 15 Md. 376: Smith p. New Orleans, 23 La. An. 5;
Delafleld p. Illinois, 26 Wend. 192.
20 Smith p. New Orleans, 23 La. An. 5. And see State p. Cardozo, 5 S.
C.297.
21 City National Bank p. Mahan, 21 La. An. 751.
Digitized by LaOOQ IC
Art !» § 10 LIMITATION OF POW£BS. 120
22 BaUey«.Ml]ner,35Ga.330.
S8 Mccracken v. Poole, 19 La. An. S99; In re Blllner, 1 Bank. Beg. 107.
24 Craig V. Missouri, 4 Peters, 431; Bank v. Clark, 4 Mo. 59; Linn v.
State Bank, 5 Dl. 87.
Legal tender.—A statute making bank-notes, or any-
thing but gold and silver, a legal tender, is unconstitu-
tional,^ or a statute requiring a bank to receive its own
notes in payment of the note of another bank,^ or a statute
authorizing the tender of the scrip of a corporation for
taxes or assessments,^ or a statute which provides for a
stay of execution unless the creditor accepts payment
in State bank paper. ^ This clause does not oblige States
to pass tender laws.^ A State may establish banks, pro-
hibit the circulation of foreign notes, and determine in
what the public dues may be paid.^
1 Briscoe v. Bank of Kentucky, 11 Peters, 257; 7 J. J. Marsh. 849;
Iiowry V. McGhee, 8 Terg. 242; Eowards v. Kearzey, 96 U. S. 606.
2 Bank of States v. Bank of Cape Fear, 13 Ired. 75.
3 Gaines v. Bives, 8 Ark. 220; State v. Beackmo, 8 Blackf. 246.
4 Briscoe v. Bank of Kentucky, 11 Peters, 257; 7 J. J. Marsh. S40;
Townsend v. Townsend, Peck, 1; Bailey v. Gentry, 1 Mo. 164.
5 Van Husan V. Kanouse, 13 Mich. 303.
6 Woodruff V. Trapnall, 10 How. 190: 8 Ark. 236; Bush v. Shipman, $
m. 186; Paup V. Drew. 10 How. 218: 9 Ark. 205; Trigg v Drew, 10 How.
224.
Bill of attainder.— A bill of attainder is a legislative
act which inflicts punishment without a judicial trial, ab-
solutely or conditionally, 1 and any deprivation or suspen-
sion of any inalienable right is punishment.* A State law
which deprives a party of the privilege of enforcing a eon-
tract on account ox acts previously done is a bill otattain-
der,» or a State law which deprives a party of the right to
pursue an avocation unless he takes an expurgatory oath
of freedom from guilt for past offenses,^ as a disqualifica-
tion of all teachers and clergymen who took part in the
late Bebellion,^ or a statute depriving of a right to rehear-
ing in an attachment suit unless he will take an oath that
he has not theretofore done certain acts, is a bill of attain-
der.* But if a party by a statute is not precluded from
asserting a title or enforcing a right, it is not a bill of at-
tainder.7 So, where a right is the creature of the organic
law of a State, the State may require an expurgatory oath
that he has not done a certain act oef ore he may be allowed
the exercise of that iight» as the right to vote,^ or the right
to practice law.o A statute of indenmity for acts done
under military authority daring the Civil w ar is not a bill
of attainder. i<>
Digitized by LaOOQ IC
121 LIMITATION OF POWERS. Alt. I, § 10
1 Cmnmings v, Missouri, 4 WalL 277 ; 36 Mo. 263.
2 Cnminings v. Missouri, 4 WaU. 277 ; 36 Mo. 263.
3 McNealy v. Gregory, 13 Fla. 417.
4 Gnmmlngs v. Missouri, 4 WaU. 277; 36 Mo. 263; Murphy's Case, 41
Mo. 339; State v. Heighland, 41 Mo. ddS. But see State v. G^ehe, 36
Mo. 256.
5 Gummings v. Missouri, 4 Wall. 277 ; 36 Mo. 263.
6 Pierce v. Carskadon, 16 Wall. 234; Kyie v. Jenkins, 6 West Va. 371;
Boss V. Jenkins, 7 Ibid. 284 ; Lynch v. Hoffman, Ibid. 553.
7 Drelunan v. Stifle, 3 Wall. 595; 41 Mo. 184.
8 Anderson r. Baker, 23 Md. 531; Blair p. Rldffley,41 Mo. 63; State
V. Neal, 42 Mo. 119; Baudolph v. Good, 3 West Va. 551.
9 Gummings v. Missouri, 4 Wall. 333; Ex parte Garland, 4 Wall. 379.
10 Drehman v. Stifle, 8 Wall. 595; 41 Mo. 184: Clark v. Dick, 1 DiU. 8;
Smith V. Owen, 42 Mo. 508 ; State v, Gatzweiller, 49 Mo. 18; Hess v
Johnson, 3 West Va. 645.
See Ante, Art. 1, Sec. 9, (3).
Ez post facto laws.— The prohibition as to ex post
facto laws means that a State shall not pass laws after a
fact done by a subject or citizen, which shall have relation
to such fact, and snail punish him for having done it.i It
is not intended to prohibit the passage of retrospective
laws, but only ex post facto laws. 2 The words ex post facto
are not applicable to civil laws, which may be retro-
spective. 3 A statute, to come within this prohibition, must
not only be retroactive, but must retroact by way of pun-
ishment.* So, if a new statute provides for a remission of
part of a sentence it is not liable to objection,^ nor if it
mitigates the punishment.^ The words ex post facto relate
exclusively to penal laws,^ and such a law is one which
renders an act punishable which was not punishable at
the time it was committed ;8 or which renders an act pun-
ishable in a liianner different from when it was com-
mitted ; ® or which changes the punishment after convic-
tion for the offense; 10 or which aggravates the punish-
ment by a law posterior to the commission of the offense, 11
or which adds a new punishment or increases an old one,
for an offense committed before its adoption. 12 A statute
which alters the legal rules of evidence and prescribes
less or different testimony for conviction than trie law re-
quired at the time of the commission of the offense is an
ex post facio law\^^ so, a statute repealing an amnesty act
is an ex post facto law; i* so, a statute allowing a divorce
for an act which was no ground for a divorce at the time
it was committed, is an ex post facto law; ^^ so. a statute
suspending the right of a party engaged in rebellion to
continue or prosecute a suit, is an ex post facto law.i* A
statute whicli provides that a party the second time con-
Desty Fed. Con.— 11.
Digitized by LaOOQ IC
Art. I, § 10 LiMiTATioir of powers. 122
victed of petit larceny is to be deemed guilty of a felony,
is not ex post facto; i^ so, a law changing the forms of pro-
cedure by which persons accused of crime are to be tried
for offenses committed before the law was passed, is not
ex post factoA^ A statute may make the breach of a pre-
existing contract criminal, although it was before only
subject to a suit for damages. ^^ A law increasing costs
on conviction in criminal cases is ex post facto. ^ A stat-
ute adding penalties and instituting new methods of pro-
ceeding cannot be applied to prior offenses.21
1 Calder v. Bull, 3 Dall. 386; Cummlngs v. Missouri, 4 Wall. 277; 36
Mo. 263.
2 Watson V. Mercer. 8 Peters, 109; Albee v. May, 2 Paine, 74; Tate
V. Stoolzfoos, 16 Serjf. & R. 35; Sedgwick v. Bunker, 16 Eans. 498; TUton
r. Swift, 40 Iowa, 78; Baldwin ». Newark, 38 N. J. 158; Lane r. Nelson,
79 Pa. St. 407; Calder «. BuU, 3 Dall. 386; Buckuer v. Street, 1 Dill. 254;
Randall v. Krelger, 2 Dill. 444; Milner v. Huber, 3 McLean, 217;
Bloomer v. StoUey, 5 McLean, 165; Johnston v. Van Dyke, 6 McLetfn,
441 ; Holman v. Bank of Norfolk, 12 Ala. 369.
3 Watson t). Mercer, 8 Peters, 109; Locke v. N. O. 4 Wall. 173; Rich
V. Flanders, 39 N. H. 304.
4 Hartung v. People, 22 N. Y. 103; State v. Paul, 5 R. 1. 190; State v.
Keeran, 5 R. 1. 497.
5 Calder v. Bull, 3 Dall. 386; Fletcher v. Peck, 6 Cranch, 137; State v.
Arlin, 39 N. H. 179; Hartung v. People, 22 N. Y. 95.
6 Turner v. State, 40 Ala. 21; Commonwealth v. Gardner, 77 Mass.
438; State r. ArUn, 39 N. H. 179; State v. Kent, 65 N. C. 311.
7 Watson v. Mercer, 8 Peters, 109; Carpenter v. Pennsylvania, 17
How. 456; Ex parte Garland, 4 Wall. 390; Lock v. New Orleans, 4 WalL
172; Calderr.Bull,3DaU.390; 2Root.352; Bridgeport r.Hubbell, 5 Conn.
240; Elliott V. Mayfleld, 4 Ala. 417; Holman vTBank of Norfolk, 12 Ala.
379; Bridgeport v. Hubbell, 5 Conn. 240; Wilder v. Lumpkin, 4 Ga. 209;
Boston V. Cummings, 16 Ga. 102; Aldridge v. T. C. Ac. R. R. Co. 2 Stew.
& P. 199; Bloodgood v. Camack, 5 Stew. & P. 276.
8 Fletcher v. Peck, 6 Cranch, 87 : Cummings v. Missouri, 4 Wall. 332 ;
Matter of Dorsey, 5 R. 1. 190; Gut v. State, 9 Wall» 38.
9 Fletcher v. Peck, 6 Cranch, 138; Hartung v. People, 22 N. Y. 9i5;
Shepherd v. People, 25 N. Y. 406; State v. McDonsad, 20 Minn. 136
10 Hartung v. People, 22 N. Y. 95.
11 Dickinson t7. Dickinson, 3 Murph. 327; Shepherd v. People, 25 N.
Y. 406; U. S. r. Gilbert, 2 Sum. 101.
12 Wilson V. O. & M. R. R. Co. 64 lU. 542; Ross r. Riley, 19 Mass. 165:
State V. Salomons, Riley, 99; Hartung v. People, 22 N. Y. 95; 26 N. Y. 167.
13 Hart v. State, 40 Ala. 32; State v. Bond, 4 Jones N. C. 9; State v.
Johnson, 12 Minn. 476.
14 State t;. Reith, 63 N. C. 140.
15 Dickinson 0. Dickinson, 3 Murph. 327. Contra^ Carson v. Carson,
40 Miss. 349.
16 Davis v. Pierce, 7 Minn. 13; Keough t>. McNitt, Ibid. 30; McFar-
land V. Butler, 8 Minn. 116; Jackson t>. Butler, Ibid. 117; Wilcox v. Da-
vis, 7 Minn. 23; Vernon v. Henson. 24 Ark. 242.
17 Ex parte Gutierrez, 45 Cal. 430; Rand v. Commonwealth, 9 Gratt.
738.
Digitized by LaOOQ IC
123 IJMITATIOK OF POWERS. Art. I, § lO
18 People V, Mortimer, 46 Gal. 114.
19 Blann v. State, 39 Ala. 353.
20 CaldweBv. State, 95 Ala. 133.
21 HUes V. State. 40 Ala. 39; Moore v. State, Ibid. 49; Stephens v.
State, Ibid. 67 ; Miller v. State, Ibid. 64.
See Ante, Art. 1, 9 (3).
What not ex post facto la'wa.—The words ex post
facto do not relate to criminal proceedings.^ So, statutes
creating new tribunals to try past offenses,^ or changing
the place of trial, ^ or a statute which operates only on
the forms of the proceedings, rendering a defective indict-
ment valid,* or allowing amendments thereto,^ or chang-
ing the mode of summoning juries, <^ or allowing the State
a certain number of peremptory challenges, "^ or reducing
the number of peremptory challenges, are not ex post facto
laws. 8 But a statute which deprives the accused of the
right to object to an incompetent grand juror is an ex pott
facto law. 9 A statute allowing counsel for the State to
open and close the argument instead of alternating, is
valid. 1® A statute authorizing the jury to assess the
amount of the tine to be imposed, or punishment to be
inflicted, is not an export facto law.^^ A statute allowing
the court, in granting a divorce, to decree that the guilty
party shall not contract marriage during the lifetime of
the other party, is not an ex post facto law.^"* So, a law
setting aside a decree and granting a new trial, is not an
ex post facto law.i^ Any change, referable to prison dis-
cipline or penal administration, may take effect on past
as well as future offenses. ^^ A statute imposing a higher
punishment for a second offense is not in conflict. i»^ A
law which repeals a prior law before th^ performance of
the acts necessary to give vested rights, is not an ex post
/ocfo lfcw,i« nor a law which prescribes conditions under
which, alone, a thing may be used in future. ^7 a la\/
regulating esclieats, which does not refer to crimes, pains,
and penalties, is not an ex post facto law.^^ A State law
Imposing a tax upon transactions of a preceding year is
not an ex post facto law.^^ A State law exacting an ex-
purgatory oath as a condition for holding an office is net
an ex post facto law.^^
1 Walston V. Coinm. 16 B. Mon. 15; People p. Mortimer, 46 CaL 114 ;
Peiry v. Comm. 3 Gratt. 632; Manning r. State, 14 Tex. 402.
2 Commonwealtli v. Fhillips,28 Mass. 28 ; State v. Sullivan,14 Blch^l.
3 Gut V. State, 9 Wall. 35.
4 State V. Sears, FhiL N. C. 146; €k>mmonwealth v. Bean, ThadL C.
C.85.
5 State p. Manning, 14 Tex. 402.
Digitized by LaOOQ IC
Art. I, § 10 LnnTATioK of powebs. 124
6 Perry v. Commonwealth, 3 Oratt. 632.
7 Walston v. Commonwealtli, 16 B. JVIon. 15; State v. Bsrsui, 13 ICiim.
WO.
8 Beynolds v. State, 1 Oa. 222; Perry v. Commonwealth, 3 Gratt. 632.
9 Martin r. State, 22 Tex. 214.
10 People V. Mortimer, 46 Cal. 114.
11 Holt r. State, 2 Tex. 363; Dawson v. State, 6 Tex. 347.
12 Elliott V. Elliott, 38 Md. 357.
13 Caldert;. Bull,3DaU.386.
14 Hartung v. People, 22 N. Y. 95. But see Strong v. State, 1 Blackf.
193; Commonwealth v. Gardner, 77 Mass. 438.
15 Ex parte Gatierrez, 45 Cal. 430; Rand v. Commonwealth. 9 Oratt.
738; Boss v. Riley, 19 Mass. 165; Plumbly v. Commonweal4h, 43 Mass. 413.
16 Van Home v. Dorranc3, 2 Dall. 304.
17 Evans v. Jordan, 9 Cranch, 199; 1 Brock. 24S; Evans v, Weiss. 2
Wash. C. C. 342; Evans r. Robinson, 1 Car. L. R. 2()9.-
18 White V. Wayne, Charlt. 194.
19 State V. Bell, Phill. (N. C.) 76.
20 State v. Woodson, 41 Mo. 227.
State legislation inhibited.— The inhibition in this
provision is on the States, and not on the Congress.^ But
Conip^ress cannot by authorization or ratification give the
slightest effect to a State law or constitution in conflict
with tho Constitution of the United States.*-^ The prohi-
bition goes to the power of the State, and not to the man-
ner or character of its action. s The body on which the
prohibition rests is the legislative department.* A State
constitution is a law so far that it cannot impair the obli-
gation of contracts by a retroactive provision. ^ So of a
constitutional amendment. ^ A change in the State con-
stitution cannot release a State from its contracts made
under the original constitution."^ The term "law" in-
cludes a judicial decision as well as a statute.^ The
Constitution only prohibits the impairing of the obliga-
tions of contracts.'** A law prohibiting the making of
certain contracts is valid, i'^ A claim arising out of a tort,
smd not from a contract, is not within the inhibition.ii
The inhibition is wholly prospective, and States may leg-
islate as to contracts thereafter to be made. 12 The legis-
lature cannot alter the nature and legal effect of an exist-
ing contract, or violate its obligation. J^s Whether the
contract relate to real or personal estate, is executed or
executory, on parol or under seal, the Constitution pre-
serves it inviolate as to its obligations.!* If a contract
Digitized by LaOOQ IC
wm^a^f^
125 LIMITATION OF POWERS. Alt. I, § 10
when made is valid, its validity and obligation cannot he
impaired by any subsequent legislation, decision, altera-
tion, or construction of the law>5
1 Matt, of Klein, I How. 277; Satterlee v. Matthewson, 2 Peters, S80;
16 Serg. A R. 191: Hepburn v. Griswold, 8 WalL 603; Legil Tenflei:
Cases, 12 WaU. 457; White v. Hart, 13 Wall. 646; 39 Ga.; Bloomer v.
StoDey,5 McLean, 158; Evans v. Eaton, 1 Peters C. C. 337; Gunn v.
Barry, 8 Bank Beg. 1 ; In re Smith, 8 Bank Beg. 405: Kunzler t'. Kohaus,
5 Hin. 825; Metrop. Bank v. Van Dyck, 27 N. Y. 400; Mayer v. Knight.
27 Tex. 719.
2 Gunn v. Barry. 8 Bank Beg. I ; In re Kennedy, 2 Blch; N. S. 2I&
Calhoun v. Calhoun, 2 Rich. N. S. 283; White v. Hart, 13 Wall. 646: 99
Ga. 306.
3 Jacoway v. Denton, 25 Ark. 625.
4 Trustees v. Blder, 13 Conn. 87.
5 Dodge V. Woolsey, 18 How. 331: Groves v. Slaughter, 15 Peters,
449; Railroad v. McClure, 10 Wall. 611; Delmas v. Ins. Co. 14 Wall. 667;
Gunn V. Barry, 15 Wall. 610; 8 Bank Beg. 1; Moultrie Co. v. Savings
Bank. 92 U. S. 632; In re McLean, 2 Bank Keg. 173; Marsh v. Burroughs,
1 Woods, 463; Osborn v. Nicholson, I Dill. 235; Hawkins v. Filkins, 24
Ark. 286; Jacoway v. Denton, 25 Ark. 625; McNealy v. Gregorv, 13 Fla.
417; Homestead Cases, 23 Gratt. 266: Furman v. Nichol, 8 walL 44;
Moore v. Illinois Central R. R. Co. 4 Chic. L. N. 123; Edwards v. Jager,
19 Ind. 407; Logwood ©.Planters* Bank, 1 Minor, 23; Chicago t?. Rnm-
8ey,87 111. 348; Ex parte Lee's Bank, 21 N. Y. 9: Rutland v. Copes, 15
Bich. 84: Hazen v. Union Bank, 1 Sneed, 115; Keith v. Clark, 2 South
L. Rev. 24: Union Bank v. State, 9 Yerg. 490; Jones v. Brandon, 48 Ga.
593; Chambliss v. Jordan, 50 Ga. 81.
6 Pac. R. R. Co. V. McGuire, 20 Wall. 36; Keith v. Clark, 97 U. S. 454.
7 Dodge V. Woolsey, 18 How. 331 ; Matheny v. Golden, 5 Ohio St: 381.*
8 Bntz V. Muscatine, 8 Wall. 575: Chicago v. Sheldon, 9 Wall. 50;.
City V. Lampsou, Ibid. 477; Township v. Talcott, 19 Wall. 666.
9 Thornton v. Hooper, 14 Cal. 9. ,
10 Churohman V. Martin, 54 Ind. 380.
11 Dash V. Van Kleeck,7 Johns. 477; Amy v. Smith, 1 Lltt. 326;
Thayer r. Seavey, 11 Me. 284.
12 Edwards v. Kearzey. 96 U. S. 603.
13 King v. Dedham Bank, 15 Mass. 447.
14 Trustees v. Rider, 13 Conn. 87; Taylor v. Steams, 18 Gratt. 244;
Farrington v. Tennessee, 95 U. S. 683.
15 Ohio It. I. & T, Co. V. Debolt, 16 How. 416; 1 Ohio St. 663; Gelpcke
r.Dubuque,l Wall. 175; Havemeyert7.IowaCo.2 WalL294; Thompson
V. Lee (^. 3 Wall. 327: MitcheU v. Burlington, 4 WaU. 270; Lee Co. v.
Rogers, 7 WaU. 181: City t>. Lamson, 9 Wall. 477: Chicago v. Sheldon, M
W^. 66; White v. Hart, 13 WaU. 647 ; Osborn v. Nicholson, 13 WaU. 655;
Olcott V. Supervisors, 16 Wall. 678; Boice v. Tabb, 18 WaU. 546; lU.
Cent R. R. Co. v. McLean Co. 17 111. 291 ; Hunsaker v. Wright, 30 lU. 146;
Newstadt v. 111. Cent. R. R. Co. 31 lU. 484. But see McClure v. Owen, 26
Iowa, 243.
Digitized by LaOOQ IC
Art. I, § 10 LUCITATIOK OF POWEB8. 126
Retrospective statutes.— Laws merely retrospective
do not necessarily impair the obligation of contracts.^ If
they do not violate the obligation of contracts or partake
I of the character of ex post facto laws, they are not for-
bidden. ^ States cannot prevent citizens from making
what contract they please out of the State,^ nor can
State laws operate on contracts of citizens beyond the
limit of the State. ^ An obligation derived from the laws
of one State cannot be impa&ed by the laws of another
State, but there is no provision requiring each State in
the Union to give the same legal obligation to contracts
made in any other State. ^ State laws in conflict with
acts of Congress must give way.^^ States in rebellion
were never out of the Union and could not pass laws vio-
lating the obligations of contracts, ? nor could they adopt
such a provision in their constitutions preparatory to
the restoration of their relations to the Union. ^ But all
acts of such States during the Rebellion, not in conflict
with the Constitution and laws of the United States, are
binding.^ A mortgage is not invalid because the loan
was Confederate State bonds ;i^ such consideration was
unlawful only when used in aid of the Rebellion; ^ so,
their voluntary acceptance extinguishes a debt,^ and
their payment to an executor is vand;^^ so, a guardian is
entitled to credit for and chargeable with the value of
Confederate State bonds.^*
1 Locke V. New Orleans. 4 Wall. 178 : Watson v. Mercer, 8 Peters, 110 ;
Curtis V. Whitney, 13 Wall. 68: Baldwin v. Newark, 38 N. J. ISO.
2 CbarlesBlver Bridge V.Warren Bridge, 11 Peters, 420: Sattertee
V. Hatthewson 2 Peters, 380; Davis v. Ballard, IJ. J. Marsh. 563; Brown
V. Storm, 4 Yt. 37; Andrews v. Bussell, 7 Blackf. 574: Holmes v. Bank,
12 Ala. 369; Baltimore &c. B. B. Co. oNesblt, 10 How. 401; Wilson «.
Hardesty, 1 Md. Ch. 66; Albee v. May, 2 Paine, 74; Bay v. Gage. 96
Barfo. 44f ; Drehman v. Stifle. 41 Mo. 184; WUder r. LumpkiiL 4 Ga. 20e;
Boston V. Gommings, 16 Oa. 102; Bronson v. Klnzle, 1 How. 831.
8 Lamb v. Bowser, 7 Biss. 316, 372.
4 Qgden v. Samiders, 12 Wheat. 213.
5 Liqisley o. Brashear, 4 Lltt. 47.
< U. S. V. Ames, 1 Wood. «& M. 76; Perry Manuf. Co. v. Brown, 2
Ibid. 462.
7 White V. Hart, 18 Wall. 646; Gimn v. Barry, 15 Wall. 610: Horn v.
Lockart, 17 WaU. 581; Williams v. Bmliy, 96 U. S. 176; Houston v. De-
loach, 43 Ala. 864 ; PoweU v. Boon, 43 Ala. 469.
8 Gonn v. Barry, 15 WaU. 610; White v. Hart. 13 WaU. 646: 89 Ga. 806;
In re Kennedy, 2 Rich. N. S. 116; Galhomi v. Calhoan,2 Rich. N. S. 283.
Keith V. Clark, II Chic. L. N. 118; Reynolds v. Taylor, 43 Ala. 420.
10 Hlcou V. Ashurst, 55 Ala. 607.
11 Van Hoose o. Bush, 54 Ala. 342.
12 McQueen v. McQueen, 55 Ala. 433: Hester v. Watklns, 54 All. 44.
Digitized by LaOOQ IC
127 LOIITATIOK OF POWERS. Art. I, § 10
IS Blount V. Moore» M Ala. 360; Foscue v. Lyon. 55 Ala* 441.
14 Ferguson v. Lowery, 54 Ala. 510; Harblu v. Bell, 54 Ala. 389.
Contracts.— >A contract is an agreement to do or not to
do a certain thing, i It is a compact between two or more
persons,^ or between States,^ or between a State and the
United States ;* but not social compacts between the
citizens and the State.^ It comprises obligations or legal
ties whereby one party binds himself or becomes bound
to pay a sum of money, or to perform or omit to perform
a certain act,<^ without distinction between express and
implied agreements.*^ It embraces those contracts which
respect property or some object of value, and which con-
fer rights that may be asserted in a court of justice. ^ It
applies to agreements which impose obligations under
general principles of law, and not those which are void
under the State constitution, or those entered into with-
out authority from the party sought to be bound. » The
character of the parties to a contract does not prevent the
application of this prohibition, ^^ and corporations are
within it as a part of the general law.^^ Contracts include
executed as well as executory ;12 express as well as im-
plied agreements. ^8
1 Osrden V. Saunders, 12 Wheat. 213; Sturgis v. Crowninshleld, 4
Wheat. 122; Woodruff v. State, 3 Ark. 285; Trustees v, Bider. 13 Conn.
87 ; Bobinson v. Magee, 9 Cal. 81 ; Fanlsworth v. Vance, 2 Cold. 108 .
2 Fletcher v. Feck, 6 Cranch, 136.
3 Green v. Blddle, 8 Wheat. 84; Achlson v. Huddleson, 12 How. 293;
7 Gill, 179: Fenn. v, WheeUng «&c. Bridge Co. 13 How. 518; 9 How. 647;
Stokes V. Searight, 3 How. 151; Neil v. State, Ibid. 720; Yon Hoffman v.
aoincy, 4 Wall. 550; Spooner t». McConnell, 1 McLean, 337; Allen v.
[cKean, 1 Sum. 276; Cox v. State. 3 Blackf. 193; Canal Co. v. R. B. Co.
4 GiU & J. 1 ; Hogg v. Canal Co. 5 Ohio, 410.
4 Lowry V. Francis, 2 Yerg. 534.
5 BiUings P. Hall. 7 Cal. 1 ; State o. Paul, 5 B. 1. 185.
6 Woodruff V. State, 3 Ark. 285.
7 Woodruff V. State, 3 Ark. 285; Myrick v. Battle, 5 Fla. 345.
8 Fletcher v. Feck, 6 Cranch. 87; Dartmouth College r. Woodward,
4 Wheat. 518: Butler v. Pennsylvania, 10 How. 402; Trustees v. Rider,
19 Conn. 87 ; Regents v. WiUiams, 9 Gill <& J. 365; Swan v. Buck, 40 Miss.
286; Herrick v. Randolph, 13 Vt. 530.
9 People V. Roper, 35 N. T. 629.
l^ Trustees v. Rider, 13 Conn. 87; Regents v. Wllllaras, 9 Gill & J.
II Fieteher v. Peck, 6 Cranch, 87; State v. Wilson, 7 Cranch, 164; 2 N.
J. MO: Terrett v. Taylor, 9 Cranch, 43; Town of Pawlett v. Clark, 9
Crancii, 292: Green v. Biddle, 8 Wheat. 1; Astrom v. Hammond, 3 Mo-
lioan, 107: Woodruff v. TrapnaU, 10 How. 190; 8 Ark. 236; Derby T. Co.
o. Parks. 10 Comi. 622; Trustees v. Rider, 13 Conn. 87; 13 Ired. 7»; Stan-
mire V. Taylor, 3 Jones, (N. C.) 207.
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWERS. 128
12 Fletcher v. Peck, 6 Cranch, 137; Von Hoflman v. Qolncy, 4 Wall.
635; Green v. Biddle, 8 Wheat. 1.
13 Fletcher v. Peck, 6 Cranch, 137; Dartmouth Coll. v. Woodward, 4
Wheat. 518.
Contracts "with State.— In its broadest sense, con-
tracts comprehend the political, between the Government
and its citizens, ^ and legislative enactments become con-
tracts under this provision.^ A State legislature may con-
tract with an individual,^ and by special legislation a sub-
sequent legislature may be bound ;* but the details of a
State contract may be altered where the alteration does
not affect the obligation. « Every contract with the State
presupposes a consideration.^ State leigislation in matters
of purely legislative concern, or general political powers,
are not within the inhibition A General laws are not con-
tracts, but only the expression of the legislative will, and
laws which amend or repeal them are not within the inhi-
bition,8 such as general regulations for the descent and
transmission of property.® States are bound by all their
contracts, but this does not include all contracts with
public officers or municipal corporations. i<> So, appoint-
ment to a public office is not a contract,!^^ and the fees
may be reduced by legislation if there is no provision in
the Constitution to oppose it;^^ or the office may be abol-
ished; is or the salary may be diminished; i* or additional
duties may be attached without increase in compensa-
tion, i^ and an officer of a public corporation is a public
officer. 16 If a professor accepts office in a university con-
trolled by the State, his employment may be terminated
at the discretion of the legislature. ^^ a statute which,
implies a contract executory does not create any rights or
duties which can be impaired.i^ A statute granting an
annuity for services rendered is not a contract.^® A stat-
ute offering a bounty is not a contract except as to those
who earn the bounty while it is in force.20
1 Dartmouth College v. Woodward, 4 Wheat. 518; Swan v. Buck, 40
Miss. 268; Winter v. Jones, 10 Ga. 190.
2 New Jersey v. Yard, 95 TJ. S. 114; Winter v. Jones, 10 Ga. 190.
3 Trustees v. Bailey, 10 Fla. 112; Winter v. Jones, 10 Ga. 190; Canal
Co. V. Bailroad Co. 4 Gill & J. 1.
4 Piqua Bank v. Knoop, 16 How. 369; Ohio L. Ins. & T. Co. v. Debolt,
1G How. 416; 1 Ohio St. 563; Mechanics' Bank v. Debolt, 18 How. 380:
Mechanics' Bank v. Thomas, 18 How. 384 : Jefferson Bank v. Skelley, 1
Black, 436; 9 Ohio St. 606; Dodie v. Woolsey. 18 How. 331 ; Wilmington
R. R. Co. V. Reid, 13 Wall. 264 ;TomUnsoni>. Branch Bank, 15 Wall. 460;
Humphrey v. Pegues, 16 Wall. 244 : Daughdrill v. Life Ins. Co. 31 Ala.
91 ; State v. County Court, 19 Ark. 360; Johnson v. Comni. 7 Dana, 338;.
State V. Bank, 2 Houst. 99; lUlnols Cent. R. R. Co. v. McLean Co. 17 111.
291; State Bank v. People, 5 Dl. 303; Bank v. New Albany, 11 Ind. 139;
Bank v. Edwards, 5 Ired. 516; Bank v. Deming, 7 Ired. 55; MimlciimUty
Digitized by LaOOQ IC
129 LIMITATION OF POWERS. Art. I, § 10
V. State Bank, 5 La. An. 394 ; People v. Auditor, 7 Mich. 84: Camden
&c. B. B. Co. V. Commissioners, 18 N. J. 71 ; State v. Berrv, 17 N. J. 81;
Gardner v. State, 21 N. J. 557; liatheny v. Golden, 5 Ohio St. 361 ; State
V, Auditor, 5 Ohio St. 444 ; Boss Co. Bank v. Lewis, 5 Ohio St. 447. But
see Toledo Bank v. Bond, 1 Ohio St. 622 ; Norwalk Co. v, Hnsted. 3 Ohio
St. 586; Exchange Bank v. Hines, 3 Ohio St. 1 ; Milan &g. Co. v. Hosted*
3 Ohio St. .^78: ^ndusky Bank v, WUson, 17 Ohio St. 48; Tenn. A Coosa
B. B. Co. V. Moore, 36 AJa. 371.
5 Thornton v. Hooper, 14 CaL 9.
6 Ohio Trust Co. v. Deholt. 16 How. 416; 1 Ohio St. 563.
7 Commonwealth v. Bird, 12 Mass. 443 ; People v. Boper, 35 N. Y. 629.
8 Coming v. Greene, 23 Barb. 33; State v. Dews, B. M. Charlt. 397;
People r. Boper, 35 N. Y. 629.
9 In re Lawrence, 5 N. Y. Sup. 310.
10 Butler v. Pennsylvania, 10 How. 402.
11 Butler V. Pennsylvania, 10 HoVr. 402 ; Barker v. Pittsburgh, 4 Pa. St.
49: Commonwealth v. Bacon, 6 Serg. & B. 322: Jones v. Shaw, 15 Tex.
677; Commonwealth v. Mann, 5 Watts & S. 418; Benford v. Gibson, 15
Ala. 521; Coffin v. State, 7 Ind. 157; Haynes v. State, 3 Ohio. 480; Swaon
V. Buck, 40 Miss. 268: State v. Smedes, 26 Miss. 47; Connor v. N. Y. 2
Sand. 355: 1 Seld. 295; State v. Dews, B. M. Charl. 397; People v. Lip-
plncott, 67 111. 333.
12 Warner v. People, 2 Denio, 272.
13 Dartmouth Coll. v. Woodward, 4 Wheat. 693; West Biv. Br. Co. v.
Dix, 6 How. 548; Butler v. Pennsylvania, 10 How. 402: Connor v. N. Y.
1 Seld. 295; 2 Sandf. 355; Knoup v. Plqua Bank, 1 Ohio St. 616; Toledo
Bank V. Bond, 1 Ohio St. 655.
14 Bedford v. Gibson, 15 Ala. 521 : Peo^e v. Auditor. 2 HI. 537 ; Barker
V. Pltt8burgh,4 Pa. St . 49 : State v. Dews, B. M. Charl. 397 ; Connor v. New
York, 2 Sandf. 355: 1 Seld. 295: Knoup v. Plqua Br. Bank,l Ohio St. 616;
Toledo Bank v. Bond, Ibid. 655; Butler v. Pennsylvania, 10 How. 418;.
Commonwealth v. Mann, 5 Watts & S. 403: Kilgore t?. Magee, 85 Pa. St.
401.
15 Turpen v. Commissioners, 7 Ind. 172.
16 Augusta V. Sweeny, 44 Ga. 463; Iowa City v, Foster, 10 Iowa, 189;
Commonwealth v. Bacon, 6 Serg. & B. 322.
17 Head v. University, 19 WaU. 526; 47 Mo. 220.
18 Trosteesv.Blder, 13Conn. 87; Swann v. Buck, 40 Miss. 268.
19 Dale t;. Governor, 3 Stewt. 387.
20 Salt Co. V. East Saginaw, 13 WalL 373; 19 Mich. 259; People v.
Auditor, 9 Mich. 327.
Contracts with State. — The privilege of payment
for land sold by the State cannot be taken away by a sub-
sequent statute. 1 Where the State gives a contract for
printing to one person, it cannot make a subsequent con-
tract with another person for the same work.^ A statute
providing for the discontinuance of work on a public
Duilding, under contract, is valid; the remedy for dam-
aces for breach of the contract remains. ^ The instrument
pledging public faith may be either in terms a contract or
a mere legislative enactment.^ Where a statute pledges
certain property for the payment of certain debts of a
Digitized by LaOOQ IC
Jktt. I, §' 10 LIMITATION OF POWERS. 130
municipal corporation, a subsequent statute may change
the mode of sale of such property." But if the legislature
pledges certain property to secure bonds, it cannot subse-
quently divest the lien or postpone it.^ A statute that ,
coupons of State bonds shall be receivable for taxes and
all debts due the State is a contract. ^ If a statute author-
ize the sale of stock held by the State, the State cannot
repeal the law, and deprive purchasers of the means of
enforcing the contract. 8 A statute which declares all
debts incurred by the State in aid of the Kebellion void
is valid. 8 But a law in violation of a compact between
States is unconstitutional. i** A statute by which the State
waives the privilege of sovereignty, and permits itself to
be sued, is not a contract. ^^ Where there is no legal rem-
edy to enforce a contract against a State, a statute forbid-
ding the auditor to issue a warrant does not violate the
obligation of the contract. 12
1 Damman v. Commissioners, 4 Wis. 414.
2 State V. Barker, 4 Kans. 379.
3 Lord w. Thomas, 64 N. Y. 107.
4 Bridge Prop. v. Hoboken &c. Co. 1 Wall. 116.
5 Babcock V. Mlddleton, 20 Cal. 643.
6 Trustees v. Beers, 2 Black. 448,
7 Antone p. Wright, 23 Gratt. 833.
8 Baldwin v. Commissioners, 11 Bush, 417.
9 Leak v. Commissioners, 64 N. C. 132.
10 Green v. Blddle, 8 Wheat. 1; Von Hoffman r. Quincy, 4 WaU. 585.
11 Beers v. State. 20 How. 527 ; Bank of Washington v. State, 20 How.
530; Flatenlus v. State, 17 Ark. 518.
12 Swann v. Buck. 40 Miss. 268.
Obligation of contract. — The obligation of a con~
tract is that which requires the performance of the legal
duties imposed by it, ^ and consists of that right or power
over his will or actions which a party by his contract con-
fers on another,2 and includes everything within its ob-
ject and scope.8 It does not inhere and consist in the
contract itself, but in the law applicable to the contract.^*
Laws relating to the validity, construction, discharge, and
enforcement are part of the contract.® The obligation
consists in the binding force on the party who makes the
contract, and that depends on the laws in existence when
it is made.^ The obligation of other things than contracts
is not protected. 7 The obligation of a contract com-
mences at its date,s and continues until the debt is paid
or the act performed.^ It extends to future possessions.^^
The validity, construction, and remedy are parts of the
Digitized by LaOOQ IC
131 LIMITATION OF POWEBS. Art I, § 10
obUgation.ii €k>ntracts made in the Confederate States,
not in aid of the Bebellion, and payable in Confederate
cnrrency, are not therefore void.^^
1 Blann p. state, 39 Ala. 353.
2 O^en V. Saunders, 12 Wheat. 218; LaiMley v. Brashears, 4 Litt. 47.
3 Edwards v. Kearzey, % U. S. 601.
4 Ogden v. Saunders, 12 Wheat. 353; Sturges v. Crownlnshield, 4
Wheat. 122 : Bronson V. Klnzie, 1 How. 311; McCracken v. Hayward.2
How. 608; Blair v. Williams, 4 Litt. 34; Lapsley v. Brashears, 4 Litt. 47:
Blanchard v. Bussell, 13 Mass. 1; Edwards v. Kearzey, 6 Am. L. R. 289.
5 Edwards v. Kearzey, 96 U. S. 601; 6 Am. La v Reg. 289; Von Hoff-
man V. Quincy, 4 WaU. 535; McCracken v. Hayward, 2 How. 606.
6 Sturges V. Crownlnshield, 4 Wheat. 122; Ogden v. Saunders, 12
Wheat. 213; McCracken r. Hayward, 2 How. 608; Robinson, v. Magee,
9 Cal. 84; Johnson r. Duncan, 3 Mart. 531 ; Western Sav. Fund v. Fhll.
adelphia, 31 Pa. St. 175; Wood v. Wood, 14 Rich. 148; Smith v. Cleye-
land, 17 Wis. 556.
7 Ogden r. Saunders, 12 Wheat. 213; Robinson v. Magee, 9 Cal. 84;
Blair V. Williams, 4 Litt. 34. ^^
8 Blair V.Williams. 4 Litt. 34.
9 BaUy v. Gentry, I Mo. 164; Forsyth v. Marbury, R. M. Charl. 324.
10 Edwards v. Kearzey, 96 U. S. 600; 6 Am. Law Reg. 289.
11 Green v. Blddle, 8 Wheat. 1 ; Ogden v. Saunders, 12 Wheat. 213;
Bronson v. Kinzie, 1 How. 311; McCracken v. Hayward, 2 How. 608;
Von Hoffman v. Quincy, 4 Wall. 535; People v. Bond, 10 Cal. 570; Story
V. Furmau, 25 N. Y. 223; Walker v. Whitehead, 16 Wall. 314.
12 Thorington v. Smith, 8 Wall. 1 ; Hanauer v. Woodruff, 15 Wall. 439;
Confederate Note Case, 19 Wall. 548; Wilmington &c. R. R. Co. v. King,
91 U. S. 3.
Impairment of obligation.— To impair means to alter
so as to make the contract more beneficial to one party and
less to the other than by its terms it purports to be.i So,
the discharge of a contract is an actual impairment of the
obligation;^ or where the contract is destrojredjS or
where an essential part is annulled,* or partially re-
scinded.^ The time, place, person, or thing to be done
cannot be changed.^ So, tlie obligation is impaired by a
statute which authorizes a discharge of the contract by a
smaller sum, or at a different time, or in a different man-
ner than stipulated, 7 as the alteration of the terms of a
condition of a mortgage. ^ Any means which lessens the
validity gives diminished value, or which divests priority
of lien, obligation, or recovery, violates the obliffation,^
or anything which affects its validity ,1^ as where the obli-
gation is diminished, weakened, or rendered less opera-
tive, i^ A statute which releases one party from any arti-
cle of a stipulation is a violation of the obligation. ^^ as
releasing a sheriff and sureties from liability on an official
bond,^^ or a release of sureties on a bail-bond after condi-
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWEBS. 132
tion broken, and assifsrnnient of the bond to the creditor.^^
The sureties on an official bond cannot be made liable for
his failure to discharge the duties of an additional office
imposed by a subsequent act. is A statute releasing future
acquisitions from liability, i^ or releasing a tenant from
his liability for rent, is void.^^ A statute which declares
that a certain consideration shall be deemed void is in-
Yalid.is A statute declaring that a contract made during
the war, the consideration whereof was slaves, is void^
Impairs the obligation of the contract; i» or which de-
clares the consideration of Confederate money, notes, or
bonds to be void.20 The validity of a contract may be
affected by a subsequent statute of frauds.^^
1 Bailey v. Gentry, 1 Mo. 164.
2 Farmers and Mechanics' Bank v. Smith, 6 "Wheat. 131.
3 Robinson v. Magee, 9 Cal. 84.
4 New Jersey t?. Wilson, 7 Cranch, 164.
5 Grlmball v. Boss, Charlt. 175.
6 Townsend v. Townsend, Peck, (Tenn.) 1.
7 Golden v. Prince, 5 Hall L. J. 502; 3 Wash. C. G. 313; Edmondson
V. Ferguson, 11 Mo. 344.
8 Bronson v. Klnzie, 1 How. 311 ; Fool v. Toong, 7 Mon. 587.
9 Grlmball r. Boss, Charl. 175.
10 Edwards v. Kearzey, 96 U. S. 595; Planters' Bank o. Sharp, 6 How.
301; 4 Smedes & M. 17.
11 Lapsley v. Brashears, 4 Litt. 47 ; Nevitt v. Bank, 14 Miss. 513.
12 Jones v. Crittenden, 1 Car. Law Rep. 385; Pool v. Younff, 7 Mon.
687; Townsend v. Townsend, Peck, (Tenn.) 1; Greenfield c.Dorris, 1
Sneed, 548.
13 State V. Gatzweiller, 49 Mo. 18.
14 Lewis r. Breckinridge, IBlackf. 220; Starr v. Robinson, 1 Chip. 257.
15 Reynolds V. Hall, 2 Dl. 36.
16 Sturges v. Crowninshield, 4 Wheat. 122.
17 Clarkr. Ticknor,49Mo. 144.
18 McNealy v. Gregory, 13 Fla. 417.
19 Osbom V. Nicholson, 13 Wall. 654; 1 DiU. 219; Boyce v. Tabb. 18
Wall. 546; McElvain v. Mudd, 44 Ala. 48; Fitzpatrick v. Heame, 44 Ala.
171; Curry v. Davis, 44 Ala. 281 ; Roach v. Gunter, 44 Ala. 209.
20 Delmas v. Ins. Co. 14 Wall. 661 ; Forscheimer v. HoUv, 14 Fla. 289;
Roach V. Gunter, 44 Ala. 209; Hatch v. Burroughs, 1 Woods, 439; Marsh
V. Burroughs, 1 Woods, 463.
21 Yon Hoffman v. Quincy, 4 Wall. .'i35.
Digitized by LaOOQ IC
133 LIMITATIOK OF POWEBS. Art. I» § 10
Degree of impairment. — A contract cannot be im-
paired in the remotest degree.^ It is not a question of
degree, manner, or cause,* But any deviation, by post-
ponement or acceleration of the period of performance,
or imposing conditions not expressed, or dispensing with
those expressed, is a violation of the obligation,^ as com-
pelling a party to do more than he has promised, or
enforcing payment before the debt becomes due,^ or
authorizmg the sale of property free from incumbrance
before the maturity of tne mortgage, ^ or providing that
all contracts shall be payable in installments, ^ or chang-
ing a joint bond into a several,'!' or attempting to deprive a
creditor of interest on an overdue debt,^ or requiring inter-
est on a debt which did not bear interest,^ or requiring a
higher rate than, that allowed at the time,io or allowing
recovery of damages in addition to interest, ii or author-
izing a party to surrender property in full discharge of
indebtedness, 12 or providing that indorsers shall be bound
without demand, notice, or protest, is but not a statute
changing the mode of giving notice and making protest, i*
A law providing that all future contracts shall be subject
to the power otfuture legislatures is void.i^ A declara-
tory, like any other act, may be unconstitutional. i^ Any
act of the legislature in contravention of a compact is an
impairment of the obligation of a contract, i^ »
1 Green v. Blddle, 8 Wheat. 1; Yon Hoffman v. Qulncy, 4 WalL 535*
2 Sturges v. Crownlnshleld, 4 Wheat. 122; Green v. Biddle, 8
Wheat. 1; Planters' Bank v. Sharp, 6 How. 301: 12 Miss. 17; Walker v.
Whitehead, Itt Wall. 314; 43 Ga. 537: Von Hoffman t?. Quincy, 4 WalL
535; Gault's Appeal, 33 Pa. St. 194; Famsworth v. Beeves, 2 Cold. Ill;
Winter v. Jones, 10 Ga. 190.
3 Green v. Biddle, 8 Wheat. 1 ; McCracken v. Hayward, 2 How. 606;
People if. Bond, 10 Cal. 563; Winter v. Jones, 10 Ga. 190: Blanchard v.
Bussell, 13 Mass. 1 ; Commercial Bank v. State, 12 Miss. 439: West Biv.
Br. Co. V. Dix, 6 How. 507; 16 Vt. 446; McCauley v. Brooks, 16 Cal. 11.
4 Jones v. Crittenden, 1 Car. L. Bepos. 385; Townsend v. Townsend»
Peck Tenn. 1.
5 Randolph v. Mlddleton, 26 N. J. Eq. 543.
6 Aycock v. Martin, 37 Ga. 124; Jacobs v. Smallwood, 63 N. C. 112,
7 Fielden v. Lahens, 6 Blatchf . 524.
8 Bleakleyo. WilUams, 20 Pitts. L. J. 66.
9 Goggins V. Tumipseed, 1 Rich. N. S. 80.
10 Woodruff 17. State, 3 Ark. 285; Hnbhard v. Callahan, 42 Conn. 524;
Lee V. Davis, 1 A. K. Marsh. 397; Bryan v. Moore, 1 Minor, 377.
11 Steen v. Finley, 25 Miss. 535.
12 Abercrombie v. Baxter. 44 Ga. 36.
13 banners' Bank V. Gunnell, 26 Gratt. 131.
14 Levering v. Washington, 3 Minn. 323 ; Grymes v. Byrne, 2 Minn. 87.
Desty Fed. Con,— 1».
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWERS. 134
15 Goeneii v. Schroeder, 8 Minn. 387.
16 Dundas v. Bowler, 3 McLean, 397; Union Iron Go. v. Pierce, 4
Biss. Si7.
17 Green v. Biddle, 8 Wheat. 1; Pennsylvania v. Wheeling &c. Br.
Co. 18 How. 433.
"What not a violation of obligation.— It is not every
law affecting the validity of a contract which impairs
its obligation.^ States may pass laws validating con-
tracts.2 So, a law which gives validity to a void contract
does not impair the obligation of that contract,^ as a laTv
declaring a contract founded on an illegal or Immoral con-
sideration as valid and binding,^ or validating bonds ille-
gally issued,^ or altering the Statute of Frauds and giving
validity to a contract, <» or making previous payments c2
usurious interest valid, ^ or permitting the eniorcement of
a usurious contract, although it applies to a prior con-
tract,8or prohibiting recovery of interest when not ex-
pressly stipulated in the contract, ^ or rendering a judg-
ment valid. i<^ A repeal of a statute is no more void than
a new law would be which would operate on the contract
to affect its validity, construction, or duration, but it can-
not affect past contracts, ii A statute may repeal a statute
under which a contract was illegal, and authorize suit
thereon, 12 as the repeal of a statute prohibiting stock-job-
bing.18 , States may pass retrospective laws that will
divest antecedent rights if they do not technically impair
the obligation of contracts, i*
1 Curtis ©.Whitney, 13 WaU. 68.
2 Welsh ». Wadsworth, 30 Conn. 154 ; Mather ». Chapman,6 Cowen, 57.
3 Satterlee v. Matthewson, 2 Peters, 380 ; Hess v. Werts, 4 Serg. & R.
856 ; Bleakney v. Farmers' Bank, 17 Serg. & B. 64 ; Bridgeport v. Bail-
road Co. 15 Conn. 475; Central Bank v. Empire S. D. Co. 26 Barb. 23.
4 Satterlee v. Matthewson, 2 Peters, 412; Corran v. Arkansas, 15
How. 10; Aspinwall v. Commissioners, 22 How. 365.
5 Kunkle v. Franklin, 13 Minn. 127 ; Comer v. Folsom, 13 Minn. 219.
6 Baker v. Hemdon, 17 Ga. 568.
7 Sparks v. Clapper, 30 Ind. 204.
8 Woodruff V, Scruggs. 27 Ark. 26; Grimes v. Doe, 8 Blackf. 371 ; An-
drews v. Bussell, 7 Blackf. 474; Savings Bankv. Bates, 8 Conn. 505; Sav-
ings Bank v. Allen, 28 Conn. 97 ; weL^htj. Wadsworth,30 Conn. 149;
Baugher v. Nelson, 9 Gill, 299 ; Town v. Peace, 25 Gratt. 1; Wood*.
Kennedy. 19 Ind. 68; Wilson v. Hardesty, 1 Md. Ch. 66; Curtis v. Leav-
Itt, 15 N. Y. 9. Contra, Morton v. Butherf ord, 18 Wis. 298.
9 Harmanson v. Wilson, 14 Amer. L. Beg. 627.
10 Tilton V. Swift, 40 Iowa, 78; Underwood v. Lilly, 10 Serg. & B. 97.
11 Ogden V. Saunders, 9 Wheat. 1; Atwater v. Woodbridge, 6 Conn.
223; Osborne v, Humphreys, 7 Conn. 335; Landon v. Litchfield, 11 Conn.
261.
Digitized by LaOOQ IC
135 LIHITATIOK or POWEBS. Art. I, § 10
12 MOne V. Haber, 3 McLean, 212: Hill v. Smith, Morris, 70; Johnson
V. Bently, 16 Ohio. »7; Lewis v. McElvain, 16 Ohio. 347. And see Bar-
ings V. Dabney, 19 Wall. 1; Van Home v, Dorrance, 2 Dall. 304:
Walker v, Tipton, 3 Dana, 3.
13 Washburn v. Franklin, 85 Barb. 599.
14 Calder v. Bcdl, 3 Dall. 386: Watson v. Mercer, 8 Peters, 88: Bait.
A^c. B. K. V, Kesbit, 10 How. 395: Satterlee v. Matthewson, 2 Peters,
380; 16 Serg. & B. 191; Lewis v. Lewis, 7 How. 784; Charles Klv. Br. v.
Warren Br. 11 Peters, 420; 23 Mass. 422: 24 Mass. 344; tochran r. Van
Surlay, 20 Wend. 365; Towle v. Forney, 4 Duer, 164.
'What not a violation of obligation.— A legislature
may enact such laws as may have for their object the
application to public use of tne property of any member
of the community, i when a fair and just equivalent is
awarded to the owner.^ A law passed before the contract
is made cannot impair its obligation. ^ So, a law may pro-
hibit making a contract of a certain kind.'^ If a party, hyr
a statute, is not precluded from asserting a title or en-
forcing a right, it is not a violation of the obligation of
contracts, s So, a statute requiring an oath of loyalty
from an attorney is not an impairment of the obligation
of a contract.^ Days of grace are no part of the original
contract, and a State may legislate on tne subject.? A law
may be good in part and bad in part ; it may be bad as to
past, and good as to future contracts. ^ The power to pass
curative acts to legalize proceedings depends on the power
to authorize such proceedings. <^ A State may cure an
irregularity or want of authority in the levy of a tax,io or
may provide for the validation of marriages, ^i or may
cure irregularities in conveyances. 12
1 Yonnff V. McKenzie, 3 Ga. 31; Jackson r. Winn, 4 Litt. 323; Beek-
man 0. Railroad, 3 Paige, 45; Bloodgood v. Railroad Co. 18 Wend. 9.
2 People V. Piatt, 17 Johns. 195; Bonaparte v. Camden &c. Co. 1 Bald.
220.
S Bronson v. Klnzie, 1 How. 311; Moore v. Fowler, Hemp. 596;
Blair v. Williams, 4 Litt. 34; Roby v. BoswcU, 23 Ga. 51; Powers v.
I>ocurherty, Ibid. 65; Sparrow v. Railroad Co. 7 Ind. 363; Davis v. Bron-
8<m3 Iowa, 410; Brans v. Crawford, 34 Mo. 330; Edwards v. Kearzy, 96
U. S. 600; 6 Amer. L. R. 289.
4 Churchman v. Martin, 54 Ind. 380.
5 Drehmanv. Stifle, 8 Wall. 595.
6 State V. Garesche, 36 Mo. 256.
7 Barlow v. Gregory, 31 Conn. 26S .
8 Ogden V. Saunders, 12 Wheat. 213; 4 Johns. Ch. 150; Berry v.
Haines, 2 Caro. L. R. 428; Commonwealth v. Kimball, 41 Mass. 359;
KorrlB V. Boston, 45 Mass. 282; State v. Paul, 5 B. 1. 185; Barry v. Ise-
man, 14 Rich. 129 ; State v. Newton, 59 Ind. 173.
9 KimbaU V. Rosendale, 42 Wis. 407.
10 Orlm V. Weissenberg Sch. Dist. 57 Pa. St. 483.
Digitized by LaOOQ IC
Art. I, § lO LIMITATION OF POWERS. 136
11 Jacquins v. Commonwealth, 63 Mass. 282; Goshen v. BicbmoiuL
86 Mass. 461.
12 Thompson V. Morgan, 6 Minn. 292.
Impairment of remedy.— The remedy enters into
and forms a material part of the obligation of the con-
tract. '^ The validity and remedy of a contract are insepa-
rable; both are parts of the obligation,^ and a statute mi^
pairing the remedy is prohibited.^ The obligation of the
contract is the duty of performing it; and if the law is so
changed that the means of enforcing it are materially im-
paired, the obligation of the contract no longer remains
the same.^ A statute can no more impair the efficacy of
a contract by changing the remedy than attack its vitality
in any other way.*> A party has a right at all times to
some adequate and available remedy.^ Where the legal
obligation is diminished, suspended, or destroyed by re-
laxing or abolishing the legal remedy, the obligation is
impaured,? so b^ burdening the pi^ceedings with new con-
ditions or restrictions, 8 or by taking away the remedy;*
but a State may abolish one of two remedies, ^^ as impris-
onment for debt, both as to present and future punish-
ment, ^o and in time of war and other controlling clrcma-
stances the remedy maybe entirely suspended. ^^ Where
the remedy is essential to the contract, the legislatm^
cannot take it away. 12
1 Von Hoffman v. Quincy , 4 Wall. 536 ; Walker v. Whitehead, 16 WalL
314; 43 6a. 537; Gimn v. Barry, 15 Wall. 610; 8 Bank. Reg. 1 ; Johnson «.
Hlggins, » Met. (Ky.) 566.
2 Walker v. Whitehead, 16 Wall. 314 ; 43 Ga. 587 ; Von Hoffman r.
Quincy, 4 WaU. 635; Scaine v. BeUevllle, 39 N. J. 10; Vroom, 526.
3 Bronson v. Kinzle, 1 How. 811 ; Green t?. Biddle, 8 Wheat. 1 ; Smith
V. Morse, 2 Cal. 624; Johnson v, Duncan, 8 Mart. 631; Coffman v. Bank,
40 Miss. 29.
4 Bronson v. Kinzie, 1 How. 311 ; McCracken v. Hayward, 2 How.
612 ; Grantly v. Ewing, 3 How. 717 ; Curran tJ. Arkansas, 15 How. 304 ;
Butz V. Muscatine, 8 Wall. 583; Walker v. Whitehead, 16 Wall. 314; Ol-
cott V. Supervisors, 16 Wall. 678; Gunn v. Barry, 15 Wall. 623; Jackson
V. Lamphire, 3 Peters, 280: Green v. Biddle. 8 Wiieat. 1; Edwards «.
Kearzey, 96 U. S. 601; Taylor v. Steams, 18 Gratt. 244; Nevitt v. Bank,
14 Miss. 513; Von Baumbach v. Bade, 9 Wis. 569.
5 Walker v. Whitehead. 16 Wall. 314; 43 Ga. 537.
6 Coffman v. Bank, 40 Miss. 29; ; and an act denying all remedy is
micoDStltutional— West v. Sansom,44 Ga. 295.
7 Lapsley v. Brashears, 4 Lltt. 27; McCracken v. Hayward, -2 How.
8 Bronson v. Kinzie, 1 How. 311 ; McCracken v. Hayward, 2 How.
612 ; Biggs v. Martin, 6 Ark. 506: Curran v. Arkansas, 15 How. 304; 12
Ark. 321; Mundy v. Monroe, 1 Mich. 68; Commercial Bank v. Cham-
bers, 96 Miss. 9 ; Penrose v. Reed, 2 Grant, 472; West. Sav. Fund v.
Philadelphia, 31 Pa. St. 175; Patman v. Bond, 15 Wis. 20.
Digitized by LaOOQ IC
137 umxATioir of powbbs. Art. I, § 10
J?, ^®<^'^ p.^TrapnaH.^TOTI<wt.^»aHnoad B. R. Co. v. Lonto-
▼Ule R. R. Co. 13 How. 71; Binirluniiflloa Br. OMe, J Wall 51* Rast
Avtford V. Hartford Br. do. iTSS^^ l1€>SSSiij£iiiii'j^
R. Co. »: Salem &c. R. R. Co. 2 Gray, 1 ; Pigcataqim »r, Co. «. ^fmr
Haven Br. 7 N. H. 35; Brewster v. Hough, 10 K. H. 138: JohMm*.
imncan. 3 Mart. «3l.
JO Mason v Halle, 13 Wheat. 370; Bcera v. Hanghton. 9 Peters, 859;
Butajp. Muflcatlue, 8 WaH. 57*j StUMes v. Crowninahleld, 4 Wheat. 122;
Von Hoffman V. Qulncy, 4 Wdi.«t5; Society for Prop. Gosp. v. Wheeler,
2 Gall. 141 ; Gray v. Manroe, 1 Mi^iean, 628; Newton v. Tibbatts, 7 Ark.
150; Fisher v. Lacky. G Blackf. 373; Itoblnson r. Macree, 9 Cal. 81 ; Peo-
ple v. Carpenter, 46 Barb. «19; Bronson v. Newberry, 2 Doug. (Mich.)
»; Mercer's Case, 4 Harring. 248; Woodlla v. Hooper, 4 Humph. 13;
Johnson, 4 Vt. 278; Conkey v. Hart, 14 N. T. 22; Petition of Pennlman.
11 B. I. 333; Watts v. Everett, 47 Iowa, 289.
11 Johnson v. Duncan. 3 Mart. 531 ; Ex parte Pollard, 40 Ala. 77.
12 Thompson v. Commonwealth, 81 Pa. St. 314.
Change of remedv.— A violation of the oblif^fation
is not necessarily implied by a reasonable change in the
mode of enforcing the contract, i Unless it substantially
lessens the rights of the creditors^ the change must reac'i
the intent of the parties.^ A mere change in one of two
rem.edies does not impair the obligation.^ So, mere inci-
dental delay, following from a general law, does not im-
pair the remedy.^ A statute may prescribe a remedy, if
there be none : and if a remedy given be as good as that
taken away, the obligation is not impaired. ° States may
pass remedial laws which are retrospective," but not such
as impair vested rights, or create personal liabilities, or
impose new obligations or duties.^ A legislature may al-
ter, modify, or even take away a remedy,^ or give a rem-
edy not already existing, i<^ although the new remedy may
be less convenient, or more tardy or difficult,ii or may
change the remedy from equity to law, or vice versa." If
a contract in its inception was without legal remedy, the
legislature may repeal a statute subsequently passed pro-
viding a remedy.^* So long as contracts are submitted to
the ordinary and regular course of justice, and existing
remedies are preserve<i in substance, the obligation of the
contract is not impaired. a* A mere change in the remedy
is not unconstitutional.^^ A statute may change the rem-
edies that are used before judgment, but not those after
judgment, so as to materially affect the rights under the
contract ;^<* but if the change materially affects rights and .
interests it is so far a violation of the compact. ^^ a State
legislature may regulate the remedy and mode of pro-
Digitized by LaOOQ IC
Art. I| I 10 LDCiTATION OF POWEIMI, 138
ceeding, of past as well as future contracts, but not so as
to take away all remedy, i^
1 llason r. Haile, 12 Wheat. 310: Templeton v. Home, 82 Di. 491:
Eader v. S. E. Road Dlst. 37 N. J. (8 Vroom), 'J78; Baldwin v. Newark,
38 N. jr. (9 Vroom) 160 ; BUlings v. Biggs, «« 111. 483.
. 2 Bronson v. Kinzie, 1 How. 311 ; Stuives v. Crowninshield, 4 Wheat.
122: Woodruff v. Ti-apnall, 10 How. 190: Hawthorne v. Calef, 2 WalL 10:
Walker t>. Whitehead, 16 Wall. 314; Green©. Blddle,8 Wheat. 1: Oiir-
ran v. Arkansas, 15 How. 319; Bobert9 v. Cocke, 28 Gratt. 207.
3 Commercial Bank v. State, 12 MlM. 439.
4 Hey ward v, Judd, 4 Minn. 483 ; Watts v. Everett, 47 Iowa, 269.
5 Bathbone v. Bradford, 1 Ala. 312; Jones v. Crittenden, 1 Car. Law
Rep. 385; Townsend v. Townsend, Peck, (Tenn.) 1 ; Wood v. Wood, 14
Riai. 148.
6 Mason V. Halle, 12 Wlieat. 370 ; Milne v. Hnber, 3 McLean, 212 ;
Brandon v. Gaines, 7 Homph. 130 ; Simmons v. Hanover, 40 Mass. 188;
Commercial Bank v. State, 12 Miss. 439 ; Wheat v. State, Mhior, 199;
Anonymous, 2 Stewt. 228: Bronson v. Klnzle, 1 How. 311 ; Davis v. Bal-
lard, 1 J. J. Marsh. 563: McMiUan v. Sprague, 4 How. (Miss.) 647; Laps-
ley V. Brashears, 4 Lltt. 47 ; Townsend ». Townsend, Peck, (Tenn.) 1;
Sav. Inst. V. Makin, 23 Mo. 360; Commercial Bank v. State, 12 Miss. 439;
Lon^ellow v. Patrick, 25 Me. 18 ; Van Rensselaer v. Snyder, 13 N. Y.
2997^1 re Trust. Pub. Sch. 31 N. Y. 574 ; Morse v. Gould, U N. Y. 281;
Pratt V. Jones, 25 Yt. 303.
7 Freeborn v. Smith, 2 Wall. 175 : Foster v. Essex Bank, 16 Mass. 245 ;
Rich V. Flanders, 39 N. H. 304; Searcy v. Stubbs, 12 Ga. 437; Johnson v.
Roockogy,23Ga. 183.
8 Brandon v. Green, 7 Humph. 130 ; Rich v. Flanders, 39 N. H. 904;
DeCordova v. Galveston, 4 Tex. 470 ; Hope v. Johnson, 2 Yerg. 125 ;
Yanzandt v. Waddell, 2 Yerg. 260; Coffin v. Rich, 45 Me. 507; Kennebec
Purch. V. Laboree, 2 Me. 275.
9 Sturges V. Crowninshield. 4 Wheat. 122; Bronson v. Kinzie, 1 How.
311; Yon Hoffman V. Quincy, 4 Wall. 535; Crawford v. Branch Bank of
Mobile, 7 How. 279; Kenyon v. Stewart, 44 Pa. St. 179; Raihx»ad Co.
V. Hecht, 95 U. S. 168; Tennessee v. Sneed, 96 U. S. 69; Florentine v.
Barton, 2 Wall. 216; Appeal of Long, 11 Ch. L. N. 43; Stocking v. Hnnt,
3 Denio, 274; Comer v. Miller, 1 Bank. Reg. 99; In re Jordan, 8 Bank.
Reg. 186; Bmce v. Schuyler, 9 111. 221; Wood v. Child, 20 lU. 209; Hunt-
zinger v. Brock, 3 Grant, 243; Read v. Frankfort Bank, 23 Me. 318; Pen«
rose V. Erie Canal Co. 56 Pa. St. 46; Lord v. Chadboume, 42 Me. 429;
Mason V. Wait, 5 111. 134; Evans v. Montgomery, 4 Watts & S. 218: pro-
vided a substantial remedy is left—Cntts v. Hardee, 38 Ga. 350; Lock-
cttt>.Usry,28Ga.345.
10 Freebom v. Smith, 2 Wall. 175: Foster v. Essex Bank, 16 Mass. 245:
Rich V. Flanders, 39 N. H. 325; Schenley r. Commonwealth, 36 Pa. St.
57; Hepburn v. Curts, 7 Watts. 300; Wheat r. State, Minor, 199; Anony-
mous, 3 Stew. 228; Biaxm v. State, 39 Ala. 353.
11 Bronson v, Kinzie, 1 How. 311 ; Guild v. Rogers. 8 Barb. 502.
12 Paschal v. WhltseU, 11 Ala. 472; Bethune v. Dougherty, 30 Ga. 770;
Baugher v. Nelson, 9 GUI, 299 ; Bartlett v. Lang, 2 Ala. 401.
13 Young r. Oregon, 1 Oreg. 213.
14 Holmes v. Lansing, 3 Johns. Cas. 73.
Digitized by CjOOQ IC
139 LQCITATION OF POWII90. Art. I^ § 10
15 Mors9 V. OouldL 11 N. Y. 281 ; Jones v. Dftvlt. 6 Neb. 33 ; Richardson
V. Akin, 8T 111. 141: Templeton v. Homo, 82111. <^1 ; Jones v. I>avis,6Neb.
33; Cox ». Berry, l3 Ga. 306; Bronsoil v. KiJUilo, 1 How. 311 ; Woodruff v.
TrapnaU, 10 How. 190; Hawthoniev. Caief, 2 WaU. 10.
16 OU?er v. McClure, 28 Ark. 555; Woods v, Bale, 5 How. (Miss.) 285;
Lockett V. Usry, 28 6a. 345: Bead v. Frankfort Bank, 23 Me. 318; Orien-
tal Bank o. Freeze, 18 Me. 109.
17 Oreen v. Biddle, 8 Wheat. 1; Yon Hofftniui v, Qulncy, 4 Wall. 535;
BiUlBgS V. Ttiggs, 56 lU. 483.
18 3SzparteP<dlard,40Ala.77.
Wliat xtot an impairment of remedy.— A statute
may take away the remedy by attaohnient,^ or may allow
amendment in attachment suits. ^ Attachment laws do
not impair the obligation of contracts between the gar-
nishee and the debtor.^ A statute authorizing attach-
ments may apply to actions before its passage.^ A
statute may abolish distress for rent,^ or conform a defect-
ive levy and sale under an execution, <i or mitigate the
severity of the penalty on bonds, ^ or may extend the time
for advertisement of mortgage sales, s or diminish the
period for publication of a notice of foreclosure,^ or may
change the remedy on a judgment, w or the remedy on
the enforcement of forfeiture of a charter.ii Where a
deed of trust authorizes a trustee, upon a default in pay-
ing certain notes, to sell the property, the sale cannot be
suspended for a Hxed term.i2
1 Damley v. State Bank, 15 Ark. 16; Krebs v. State Bank, 15 Ark.
19; Alils V. State Bank, 15 Ark. 19: Leathers v. Shipbuilders' Bank, 40
Me. 386; Bigelow v. Pritcbard, 38 Mass. 169.
2 Knight v. Dorr, 36 Mass. 48.
3 Phllbrick v. Philbrick, 39 N. H. 468; Klaus o. City, 34 Wis. 628.
4 Coosa Biver S. Co. v. Barclay, 30 Ala. 120.
5 Conkey v. Hart, 14 N. Y. 22; Van Rensselaer v. Snyder, 13N. Y.
299; Oould V. Rogers, 8 Barb. 502.
6 Mather v. Chapman. 6 Conn. 54; Beach v. Walker, 6 Conn. 190;
Norton V. Pettlbone, 7 Conn. 319; Booth v. Booth, 7 Conn. 350; Menges
9. Wertmau, 1 Pa. St. 218; Bell v. Roberts, 13 Vt. 582; Selsby v. Redlon,
19 Wis. 17.
7 Wood V. Kennedy, 19 Ind. 68; Potter r. Sturdevant, 4 Me. 154.
8 Yon Banmbach v. Bade, 9 Wis. 559; Starkweather v. Hawes, 10
Wis. 125.
9 Hopkins V. Jones, 22 Ind. 310; Webb v. Moore, 25 Ind. 4.
10 Livingston v. Moore, 7 Peters. 420; Williams v. Waldo, 4 HI. 264;
Orosvenor v. Chesley, 48 Me. 369; Sprott v. Beid, 3 G. Greene, 489.
11 Aurora T. Co. v. Holthouse, 7 Ind. 59.
12 Taylorv. Steams, 18 Gratt. 244.
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWEBS. 140
Statutes of limitation and usury laws, unless ret-
roactive, do not impair the obligation of contracts; i so,
an act reducing the time prescribed by a statute of lim-
itations is not inconsistent, if reasonable time be given/^
Statutes of limitations are not inconsistent if reasonable
time be given before the bar takes effect,8 but if unreason-
able they are void; '^ yet if a substantial remedy remains,
they are valid.'* A limitation of one year on municipal
bonds, for negotiation id a foreign market, is unreasona-
ble. <* Thirty days is not a reasonable time to allow for
the bringing of a suit,*^ but an extension of time for bring-
ing an action does not impair the obligation of the con-
tract. ^ Whether the time allowed for commencing an
action is reasonable or not is a question for the court, and
not the legislature, to determine,^ and it must appear
that the unmistakable purpose and effect of the law is
to cut off the right of the party, and not merely to limit
the time. 10 j^ statute prescribing the time for the exer-
cise of authority to establish a lottery is valid. ^^ A stat-
ute requiring a new promise to be in writing, is valid if
ample time is allowed to enforce the demand.^ A stat-
ute of limitations repealing a prior act is void as to actions
pending at the time of the repeal, ^s An act in the nature
of a limitation act is constitutional, as it merely affects
the remedy. 14
1 Stiurges r. Crowninshield, 4 Wheat. 122.
2 Terry tj. Anderson, 95 U. S. 628.
3 Jackson v. Lamphire, 3 Peters. 280; Hawkins v. Barney, 6 Peters,
457; Lockhart V. Yeiser, 2 Bush, 231; Barker v. Jackson. 1 Taine, 559;
Lewis V. BroadweU, 3 McLean, 668; Christmas v. Russell, 5 WaU. 290;
Sohnr. Wat«rson, 17 Wall. 5:j6; Samples v. Bank, 1 Woods, 523; Terry
V. Anderson, S5 U. S. 634; Lewis v. Harbin, 6 B. Mon. 664; Blackford ».
Peltier, I Blackf. 86; Pearce v. Patton, 7 B. Mon. 162; Stearns v. Glt-
tlng8,23 ni. 387; Newland v. Marsh, 19 111. 376; Griffin v. McKenzle, 7
Ga. 163; McKenny v. Compton, 18 Ga. 170; George v. Gardner, 49 Ga.
441; Butler ». Palmer, 1 11111,324; State t>. Bermudez, 12 La. 852; Cum-
mlngs V. MaxweU, 45 He. 190; Beal v. Nason, 14 Me. 344; Sampson r.
Sampson, 63 Me. 328; State v. Jones, 21 Md. 432; Smitli v. Morrison, 3i>
Mass. 430; Holcombe v. Tracy, 2 Minn. 241 ; Stone v. Bennett, 13 Minn.
153: Stephens v. St. Louis National Bank, 43 Mo. 385; Briscoe t>. Anke-
tell,28 Miss. 361; Maltby t?. Cooper, Morris, 59; Rexford v. Kniffht, 11
N. Y 808; Call v. Hamrer, 8 Mass. 423: De Cordova c. Galveston. 4 Tex.
470; Bell v. RobertsTlS Vt. 682; Smith v. Packard, 13 Wis. 371; Miller v.
Commonwealth, 5 Watts & S. 488. Instances of reasonable tlme—Ad-
amson v. Davis, 47 Mo. 268: Adamson v. Wilson, 47 Mo. 272; Adamson
V. Marshall, 47 Mo. 273: Ooflman v. Bank of Kentucky, 10 Miss. 29; HUl
V. Boyland, 10 Miss. 618; Burt c. Williams. 24 Ark. 91; Coxe v. Martin,
44 Pa. St. 322.
4 Pereles v. Watertown, 6 Biss. 79; Berry v. Ransdall, 4 Met. (Ky.)
292; Society for Prop, of Gospel v. Wheeler, 2 Gall. 105; Johnson v.
Bond, Hemp. 633; Robinson v. Magee,9 Cal. 81; Auld r. Butcher, 2
Kans. 136; Amy v. Smith, 1 Lltt. m; Proprietors v. Laborers,? Me.
Digitized by LaOOQ IC
141 LIMTFATIOK OF POWEB8. Alt. I, § lO
379; Garrett v. Beaumont, 24 Miss. 377; Forsyth v. Marbnry, B. VL
Cbarlt, 324 ; Osbom v. Jaines, 17 Wis. 678.
5 Von Baumbach v. Bade, 9 Wis. 559.
6 Pereles v. Watertown, 6 Biss. 79.
7 Berry v, Ransdall, 4 Met. (Ky.) 292.
8 Cox V. Berry, 13 Ga. 306; Winston r. McCormIck, 1 Ind. 56; £4-
iitrards v. McCaddon, 20 Iowa, 520: Swickard v. BaUey, 3 Kans. 507;
GUman v. Cutts, 23 N. H. 376; Smith v. Tucker, 17 N. J. 82; Wardlaw v.
Buzzard, 16 Rich. 168; Pleasants v. Rohrer, 17 Wis. 677.
9 Pereles v. Watertown, 6 Biss. 79. But see Smith v. Morrison, tf
Mass. 430.
10 Rexford v. Knight, 11 N. T. 308.
11 Phalen v. Commonwealth, 8 How. 163; 1 Rob. (Va.) 713.
12 Briscoe v, Anketell, 28 Miss. 361 ; Joy v. Thompson, 1 Doug. 383.
13 Stuives V. Crowninshield, 4 Wheat. 207; McElmoyle v. Cohen, 13
Peters, 312; Society v. Wheeler, 2 Gall. 141 ; Bank of Alabama v. Datton,
9 How. 622; Kennebec Land Co. r. Laboree. 2 Me. 293: Klngsley v.
Cousins, 47 Me. 91; Call v. Hagger, 8 Mass. 429; Beal v. Kason, UlUte.
344: Woart r. Wimmick, 3 N7h:473.
14 George «. Grardner, 49 Ga. 441 ; Bertrand v. Taylor, 87 HI. 235.
Ezemptioii laws.— States may pass exemption laws.^
but if the exemption is too large and materially affects
the remedies, it is void ;2 as where a new constitution
deprives courts of jurisdiction to sell exempt property.*
Statutes exempting; from execution impair the obligation
as to prior contracts.* The legislature may exempt real
as well as i>ersonal property ;5 but if the law is to enable
the holding of large properties rather than to secure the
well-being of citizens, it is void.* So, a State cannot enact
a law to exempt property if it was liable to deizure and
appropriation when the debt was incurred."^ A State law
exempting a homestead is valid if it is such as sound
poHcy dictates, 8 although it leaves the debtor no property
liable to execution. ^ Such a law is valid so far as it affects
debts created after its passage, though prior to the declar-
ation of homestead. I* The subjection of property to exe-
cution, which was not so at the time the contract was
made, does not impair the obligation of the contract, i*
No exemption can be allowed, as against a mortgagee
claiming under a mortgage made prior to the law allow-
ing the exemption.i2 An exemption law cannot divest
the lien of a judgment and leave no means for the collec-
tion of the debt.18 go, creating a new exemption by a
constitutional provision impairs the obligation of prior
contracts.!*
1 Planters* Bank v. Sharp, 6 How. 801; Von Hoffman o. Qulncy, 4
Wall. 536: Morse v. Gould, if N. Y. 281.
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWERS. 142
2 Edwards v. Kearzey, 96 IT. S. 611; Grimes v. Byrne, 2 Minn. 89;
Stephenson v. Osborne, 41 Miss. il9; Morse v. Gould, U N. T. 281;
Lessley v. Phipps, 49 Miss. 790.
3 Hardeman v. Downer, 39 Ga. 425.
4 Quackenboss v. Danks, 1 Denio, 128; 1 N. Y. 129; Hawthorne v.
Calef, 2 Wall. 23. Bat see contra, Mede v. Hand, 5 Amer. L. Beg.
N. S. 82; Bockwell v. Habbell.2 Dong. 197; Morse v. Gould, 11 N.T. m.
And see Boby v. Boswell, 23 Ga. 51.
5 HUl r. Kessler, 63 N. C. 436; Jacobs v. SmaUwood, Ibid. 112.
6 Cusic V. Douglas. 3 Kans. 23.
7 Penrose v. Erie Can. Co. 56 Pa. 46; State v. Bank, 1 Rich. N. C. 63.
8 Cusic V. Douglas, 3 Kans. 23; Boot v. McGrew, n)id. 215.
9 HiU V. Kessler, 63 N. C. 436.
10 In re Henkel, 2 Sawy. 305.
11 Beardon v. Searcy, 2 Bibb, 202.
12 Shelor v. Mason, 2 Rich. N. S. 233.
13 Gunn V. Barry, 15 Wall. 610; Smith v. Morse, 2 Cal. 524; TiUotson
r. Millard, 7 Minn. 613: McKeithan v. Terry, 64 N. C. 25; Forsyth v.
Marbury, B. M. Charl. 324. But see Hardeman v. Downer, 39 Ga. 425;
In re Kennedy, 2 Bich. N. S. 116 ; Adams v. Smith, Ibid. 228.
14 Gunn v. Barry, 15 Wall. 610; Jones v. Brandon, 48 Ga. 5^.
Stay lavrs.— Laws providing for a stay of execution,
so far as they abridge the remedy, impair the obligation
of the contract,! and are in conflict with the National Con-
stitution; -^ but if they aifect the remedy, and not the right,
they are valid.^ A law procrastinating the remedy de-
stroys part of the right.* The right to suspend the recov-
ery of a debt for one period implies the right of sjuspending
it for another.^ A statute exempting from civil process
while parties are in the military service is void.® So, a
statute which subiects parties to a longer credit than was
allowed by law wnen the contract was made, is unconsti-
tutional. ■' A law which merely suspends temporarily pro-
ceedings for the collection of debts is constitutional ;8
so, where the stay is definite,and not unreasonable,^ as that
all actions to enforce a judgment shall be suspended for
seven months, lo or that all actions shall stand continued
during the time defendant remains in the actual military
service.ii The legislature may provide for a stay of exe-
cution if the stay is not so unreasonable as to substan-
tially impair the obligation of the contract; i* so a pro-
vision for a stay, unless plaintiff will take property levied,
on at two-thirds of its appraised value,is unconstitutional ;^8
but a statute providing for a reasonable sta^, unless the
property levied on shaU bring two-thirds of its appraised
value, 13 not unconstitutional in respect to its retrospec-
tive operation. 1* A statute adding conditions that no
sale under execution for any sum less than two-thirds the
Digitized by LaOOQ IC
143 uMxrATiOK OF POWERS. Art. I, § 10
value of the property levied on shall be made, violates
the obligation of the contract. is So, the legislature can-
not provide for a stay when the contract provides that
there shall be no stay.^^ A statute allowing a stay for an
indefinite time,i7 npon the consent of two-thirds of the
creditors, is void.^^ So, a statute allowing a stay of exe-
cution, so long as installments are paid, is void; ^^ but a
statute may provide for a stay on a judgment obtained by
confession until the demand is due.^o or until an appraise-
ment is made.21 A law which grants a stay of execution
for a certain period upon a judgment superseded with
sureties, impaurs the obligation of contracts made before
its adoption.^ An act cannot affect a judgment rendered
before its passage. 28 A State may grant a stay of execu-
tion upon a judgment due to a municipal corporation.*-**
A statute which enacts that the obligation on official
bonds shall not have the benefit of stay laws or appraise-
ment laws, is valid.26
1 Bronson v. Klnzie, 1 How. 311 ; McCracken v. Hayward. 2 How.
fite : Grantby v. Ewing, 3 How. 707: Howard v, Bugl>ee, 24 How. 461 ;
Seoby v. Gibson, 1 Am. Law Beg. N. S. 221 ; Ex parte Pollard, 40 Ala.
77; Bart v. Williams, 24 Ark. 91 ; Dormire v. Cogfy, 8 Blackf. 177 ; Hud-
3>etb V. Davis. 41 Ala. 389 ; Jones v. Crittenden, 1 Car. Law Bep. 385;
arlingtod v. Priest, 13 Fla. 569; Aycock t>. Martin, 37 Ga. 124; Webster
V. Rose, 6 Heisk. 93: Strong v. Daniel, 6 Ind. 348; Barnes v. Barnes, 8
Jones, (N. C.) 366; Carglll v. Power, 1 Mich. 369; Coflmanr. Bank, 40
Miss. 29; Baiiy r. Gentnr, 1 Mo. 164; Brown r. Ward, I Mo. 209; Bum-
gardner v. Circuit Court, 4 Mo. 60; Grayson v. Lilly, 7 Mon. 6; Jacobs
V. Smallwood, 63 N. C. 112; Stevens v. Andrews, 31 Mo. 205; Townsend
V. Townsend, Peck. (Tenn.) 1: State v. Carew, 13 Rich. 498; Sequestra-
tion Cases, 30 Tex. 688; Canfleldv. Hunter, Ibid. 712; Culbreath ». Hun-
ter, Ibid. 7 13 ; Levison v. Norris, Ibid. 713 ; Le vison v. Krohne, Ibid. 714 ;
Bunn V. Goigas, 5 Wright, 441 ; Blllmyer v. Evans, 4 Wright, 324. But
see McCormlck v. Rusch, 3 Am. Law Beg. N. S. 93 ; Cbadwick v. Moore,
8 Watts & S. 49; Breitenbach v. Bush, 8 Wright, 313.
2 Edwards v. Kearzey, 96 TJ. S. 601, approving Barnes v. Barnes, 8
Jones (N. C.) 366; Jones v. Crittenden, 1 Car. Law Rep. 385; Jacobs v.
SmaUwood, 63 N. C. 112.
3 Coriell v. Ham, 4 G. Greene, Iowa, 455; Grosvenor r. Chesley,48
Me. 369; Swift v. Fletcher, 6 Minn. 550.
4 Johnson v. Duncan. 3 Mart. 531; as postpODing the rendition of
jadgment for at least twelve months— Ex parte PoDard, 40 Ala. 77.
5 Jones v. Chittenden, 1 Car. Law Rep. 385.
6 Clark v. Martin, 49 Pa. 299; Hasbrouck v. Shipman, 16 Wis 296.
7 January v. January, 7 Mon. 542 ; Pool v. Young, Ibid. 587.
8 OrimbaU 0. Ross, Charl. 175.
9 State V. McGinty, 41 Miss. 435; Breltenback v. Bush, 44 Pa. St. 313;
Coxe r. Martin, Ibid. 322.
10 Johnson v. Higgins, 3 Met. (Ky.) 566; Barktey v. Glover, 4 Met. .
(Ky.)44.
Digitized by LaOOQ IC
Art. I| § 10 LIMITATION OF POWBBS. 144
11 McCormlck v. Bosch, 15 Iowa, 127; Edmundson v. Fernuon. 11
Mo. J44; Lindfley v. Burbrldge, Ibid. 64ft. 8»~-f
12 Himtzlnger v. Brock, 3 Grant. 243.
13 Baily v. Gentry, 1 Mo. 164.
14 Thompson v. Buckley, 34 Leg. Int. 148; Cbadwick v. Hoove, 8
Watts & S. 49.
15 McCracken v. Hayward, 2 How. 606; Gantly v. Ewlng, 3 How. 79J;
Bronson v. Klnzie, 1 Bow. 311; Hunt v. Gregg, 8 Blackf7!05; Smoot v.
Lafferty, 2 Glim. 383; Rosier v. Hales, 10 Iowa, 470; Rawley v. Hooker,
21 Ind. 144; Baily v. Gentry, 1 Mo. 164. Contra, Waldo v. Williams, 4
DL 264; Catlln v. Munger, 1 Tex. 598.
16 Griffith V. Thomas, 34 Leg. Int. 150; Billmeyer v. Evans, 40 Pa. St
324; Lewis v. Lewis, 47 Pa. St. 127.
17 Hudspeth v. Davis, 41 Ala. 389.
18 Bunn v. Gorgas, 41 Pa. St. 441.
19 Jones v. McMahan, 30 Tex. 319; Earle v. Johnson, 31 Tex. 164.
20 Wood V. Child, 20 Dl. 209; Barnes v. Barnes, 8 Jones N. C. 366.
21 Catlln V. Munger, 1 Tex. 598.
22 Blair v. Williams, 4 Litt. 34; Lapsley v. Brashears, 4 Litt. 47. Con-
trof Farnsworth v. Vance, 2 Cold. 108.
23 Dormire v. Cogly, 8 Blackf. 177; nor will It apply to a mortgage
executed prior to its passage— Harrison v. Styres, 74 N. C. 290.
24 .Governor v. Gridley, Walk, 328.
25 Pierce t>. Mill, 21 Ind. 27.
State insolvency la^vs.— An insolvent law which
discharges from future debts is valid, ^ where the creditor
and the debtor reside in the same State,^ but not if the
creditor resides in a different State f but an insolvent
law which releases the debtor from a debt contracted
prior to its enactment impairs the obligation of the con-
tract,* although the foreign creditor was temporarily
residing in the State at the time the contract was m^e ;^
the question depends upon the citizenship of the creditor,
and not upon tne place where the contract was made, or
was to be performed. <* If the contract was not to be per-
formed in the State, a discharge will not release from the
demand of a citizen of another State,? and if the attorney
of a foreign creditor takes a note for the debt, the court
will regard the rights of the beneficial owner ;8 but a
State insolvent law is valid a^inst a foreign creditor so
far as it releases the person of the debtor from imprison-
ment.^ A statute may provide for the discharge of a jail-
bond in a manner different from that named in the bond.^<>
A law providing for the distribution of the assets of an
insolvent estate is valid as against general creditors. ^^
So, an insolvent law discharging the person and after-ac-
quired property is not a violation of the Constitution. 12
Digitized by LaOOQ IC
145 UMITATION OF POWEBS. Art. I» § 10
1 Ogden V. Saimders, 12 Wheat. 213; Hempstead v. Beed, 6 Conn.
480; Blancbard v. Bussell, 13 Mass. 1; Betts v. Bagley. 12 Pick. 573:
Adams V. Storey, 1 Palue, 79; 6 HaU L. J. 474. See Boby r. Boswell, 2i
Ga.51.
2 Ogden v. Saunders, 12 Wheat. 358 ; Wilson v. Matthews, 32 Ala. 332;
Tngh V. Bussell, 2 Blackf. 966; Norton v. Cook, 9 Conn. 314; Jacques v.
Marchand, 6 Cow. 497 ; Mather v. Bush. 16 Johns. 233 ; Baker v. Wheaton.
5 Mass. 509; Walsh r. Farrand, 13 Mass. 19; Blancbard v. Bussell, 13
Mass. 1 ; Alexander r. Gibson, 1 Nott & McC. 480 : Smith v. Carsons, 1
Ohio, 236. And see Herring v. Selding, 2 Ark. 12; Smith v. Mead, 3
Coon. 253: Hammett v. Anderson, Ibid. 304; Medbury v. Hopkins, Ibid.
472; Hinkley v. Marian, 3 Mason, 88; Yanuxem v. Hazlehursts, 4 N. J.
192; Ballanthie v. Haight. 16 N. J. 196.
3 Ogden r . Saunders, 12 Wheat. 369 ; Boyle v. Zacharle, 6 Peters. 635;
Cook V. Moflfat, 5 How. 295; Baldwhi v. Hale, 1 WaU. 223; Kelly v.
Drury, 9 Allen, 27; Pugh v. Bussell, 2 Blackf. 366; Norton v. Cook, 9
Conn. 314; Bradford v. Farrand, 13 Mass. 18; Donnelly v. Corbett, 7 N.
Y. 500; Van Beimsdyk v. Kane, 1 Gall. 630; 9 Cranch, 158; Huntley v.
Morean, 3 Mason, 88.
4 Sturges V. Crowninshield, 4 Wheat. 122; Farmers &c. Bank v.
Smith, 6 Wheat. 131; 3 Sei^. & B. 63; Golden v. Prince, 3 Wash. C. C.
313; Boardman v.De Forest, 5 Conn. Ij Boosevelt v. Cebra, 17 Johns.
108; Post V. Biley, 18 Johns. 64: In re WendeU, 19 Johns. 153; Oldens v.
Hidlet, 5 N. J. 466; Smith v. Mead, 3 Conn. 253; Boosevelt v. Cebra, 17
Johns. 106 ; Kimberly v. Ely, 6 Pick. 451 ; Corner v. Miller, 1 Bank. Beg.
•9; Cook V. Moffatt, 5 How. 295. But see Adams v. Storey, 1 Paine,
79; Barber V. Miutum,! Day, 136; McMillan v. McNeill, 4 Wheat. 20J;
Terrett v. Taylor, 9 Cranch, 43.
5 Easterly t>. Goodwin, 35 Conn. 279.
6 Baldwin v. Hale, 1 Wall. 223; 3 Amer. L. B. N. S. 462; Hawley v.
Hunt, 27 Iowa, 303.
7 McKlm V. Willis, 83 Mass. 512.
8 Isley V. Merian, 61 Mass. 242; Crow v. Goons, 27 Mo. 512.
9 Glenn v. Humphreys, 4 Wash. C. C. 424; Choteau t;. Bichardson, 94
Mass. 368; Carey v. Conrad, 2 Miles, 92; DonneUy v. Corbett, 7 N. Y. 500.
10 Oriental Bank v. Freeze, 18 Mo. 109; Morse v. Bice, 21 Me. 53.
11 Deichman's Appeal, 2 Whart. 395.
12 Wilson V.Matthews, 32 Ala. 332.
Legislative authority over judicial proceedings.
The lorms and system of courts and proceedings may be
changed by the legislature. ^ A State may create, alter,
or al^lish courts, and change their sessions ;2 but a change
in the terms which operates on contracts only is void.8
The legislature may pass laws confirming doings of courts
and other public bodies known to the laws.^ A statute
may regulate the time and mode of trial,^ or change the
manner of commencing action, serving notices, and
process ;« but a statute extending the time for prosecu-
tion cannot revive a right which was barred at the time
of its passage. 7 A statute may extend the time for tak-
ing default. 8 The legislature may change the rules of
evidence so as to affect prior contracts, ^ but it cannot cut
Dksty Fed. Cok.— 18.
Digitized by LaOOQ IC
Art. I» § 10 i^mrrATiON of powers. 146
off or destroy the rights of a bona ftde holder of commer-
cial paper by changing the rules of pleading or evidence ; '^^
so, a law which changes the rule oi evidence of a contract
impairs its obligation. ^^ A statute regulating proof s is
valid ;12 so, a law dispensing with the necessity or proving
the names of individual partners is valid, i« or of proving
the signature to a written instrument, i* A statute may
change the presumption in favor of tax-deeds, is A stat-
ute may facilitate the means of ascertaining what the
contract was,i8 or may permit inquiry into the considera-
tion of a sealed instrument executed in another State ; ^^
but a statute which requires proof of consideration, on a
plea under oath that itnas been used for illegal purposes,
IS void. ^8 A statute making parties competent witnesses
on their own behalf is valid. ^^ A statute may permit
either party to give in evidence the consideration, its
value, the mtent of the parties as to payment, the value
of the currency, and may direct that verdict and judg-
ment be on principles of equity ;2'> but the jury cannot put
their own estimate upon the value of the contract instead
of taking the value stipulated by the parties.^i A retro-
spective statute, which provides that no verdict should
be rendered unless the contract had been legally returned
for taxes, is void.22
1 Livingston v. Moore, 7 Peters, 469: Bald. 424; Rathbone v. Brad-
ford, 1 Ala. 312: Grubbs v, Harris, 1 Bibb, 567; Stoddard v. Smith, 5
Blnn. 355; Smith v. Bryan, 34 111. 264; Maynes v. Moore, 16 Ind. 116;
Hopkins v. Jones, 22 Ind. 310; Webb v. Moore, 25 Ind. 4; Citizens' Bank
V. Degnoodt, 25 La An. 628; Wheat v. State, Minor, 199; Vanzandt
V. Waddell, 2 Yerg. 260.
2 Bathbone v. Bradford, 1 Ala. 312: Ex parte Pollard, 40 Ala. 77;
Woods V. Bine, 6 How. (Miss.) 285; New Kirk v. Ghapron, 17 HI. 344;
Lapsley v. Brashears, 4 LItt. 47 ; Johnson 0. Duncan, 3 Mart. 531 : John-
son V. HIgglns, 3 Met. (Ky.) 566; Morse v. Goold, 11 N. Y. 281; Stote v.
Barringer,I'hil. (N. C.) 554; Wood v. Wood, 14 Rich. 148; Hansrickv-
Bouse, 17 6a. 56.
3 Jacobs V. Smallwood, 63 N. C. 112; Johnson r. Winslow, 64 N. C. 27.
4 Kearney v. Taylor, 15 How. 494; Goshen v. Stonlngton, 4 Conn.
310; Thornton v. McGrath, 1 Duval, 349; Davis v. State Bank, 7 Ind.
316; Underwood v. Lilly, 10 Serg. & R. 97.
5 Woods V. Bine, 5 How. (Miss.) 2*5; Ex parte Pollard, 40 Ala. 77;
Van Baumbach v. Bades, 9 Wis. 569.
6 Raih-oad Co. v. Hecht, 95 U. S. 168; McCreary v. State, 27 Ark. 425;
New Albany &c. R. R. Co. v. McNamara, 11 Ind. 543.
7 State V. Sneed, 26 Tex. Sup. 66.
8 Von Baumbach v. Bade, 9 Wis. 559; Holloway v. Sherman, 12
Iowa, 282.
9 People t>. MitcheU, 46 Barb. 208; Pales v. Wadsworth, 23 Me. 553;
Scheible v. Bachs, 41 Ala. 423; Tarleton v. Southern Bank, Ibid. 722;
Klrtland v. Molton, Ibid. 548; Herbert v. Easton, 43 Ala. 547: Slaughter
Digitized by LaOOQ IC
147 LIMITATION OP POWERS. Art. I^ § 10
^. •
V. Culpepper, 35 6a. 26; Boby v. Chicago, 64 HI. 447; Howard v. Moot,
64 N. Y. m.
10 Comelli;. Hichens, 11 Wis. 353.
11 Marsh v. Burroughs, 1 Woods, 463.
12 Wood V. New York, 6 Robt. 463.
13 Ballard v. Bidgley, Morris, 27.
14 Ingraham 9. Dooley, Morris, 28.
15 Hickox V. Tallman. 38 Barb. 608; Roby v. City, 64 HI. 447; Smith v.
CleTBland, 17 Wis. 556; Lain v. Shepardson, 18 Wis. 69.
16 Woodfln r. Slader, Phill. (N. C.) 200.
17 Williams r. Haines, 27 Iowa, 251.
18 Edwards V. Dixon, 53 6a. 334.
19 Balston v. Lothain, 18 Ind. 303 ; Neass v. Mercer, 15 Barb. 318.
20 Slaughter v. Culpepper, 35 6a. 25; Cutts v. Hardee, 38 6a. 350;
Taylor v. FUnt, 35 6a. 124: Klrtland v. Molton, 41 Ala. .548; Tarleton o.
Southern Bank, 41 Ala. 722; Herbert v. Easton, 43 Ala. 547; Robeson o.
Brown, 63 N. U. 554; King v. W. & W. R. R. Co. 66; N. C. 277; 91 U. S. 3;
Rutland v. Copes, 15 Rich. 84.
21 W. & W. B. R. Co. V. King, 91 TJ. 8. 3 ; 66 N. C. 277 ; Leach v. Smith,
25 Ark. 246; Woodruff r. TlUy, 25 Ark. 3W.
22 Lathrop v. Brown, 1 Woods, 474 ; Walker v. Whlthead, 16 Wall. 314;
Gardner v. Jeter, 49 6a. 195; 6rlfflths v. Shlpp, Ibid, 231; Kimbro v.
Bank, Ibid. 419; Dougherty v. Fogle, 50 6a. 464.
Statute rights.— Rights- growing out of statute pro-
visions may be modified by statute. ^ The legislature may
regulate the marriage contract,^ or may regulate di-
vorces,* or may regulate dower.* A statute requiring in-
terest to be paid in advance to enable the mortgagor to
remain in possession is valid.^ A statute authorizing the
sale of property free from incumbrance, and transferring
the lien thereof to the proceeds, is valid ;^ but if it per-
mits the sale whether it brings suflScient to pay the
incumbrance or not, it impairs the obligation of the mort-
gage;"^ so if it allows the proceeds of the propertv lirst to be
applied to the payment of costs other than of the sale.*
Tne lien of a judgment may be taken away by statute.^
Depriving creditors of their judgment-lien does not im-
paur the obligation of contracts, i® and requiring a party
to record the abstract of his judgment to preserve the
lien is valid, i^ A State has control of a judgment for
dami^es in a proceeding to appropriate private property
to public use.*2 liens created by law are subject to the
control of the legislature, to either alter, vary, modify, or
repeal ;i« so, a statute giving a sub-contractor a lien is
valid.'* A statute creating a lien upon the property of
the debtor in favor of an existing contract is valid.i» A
statute giving the grantee of a rent charge the right of
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWEBS. 148
reentry for nonpayment of rent is valid ;1g so, an act tak-
ing away priority of claim for rent in case of a levy is
valid.i" A statute depriving a lessee of an action for
forcible entry and detainer against a lessor, i*^ or a statute
giving an action of covenant against an assignee of a
leasenold estate, is valid. ^^
1 Oriental Bank v. Freeze, 18 Me. 103; Morse v. Rice, 21 Me. 53.
2 White r. White, 6 Barb. 474: Fultz v. Fox, 9 B. Mon. 499; KeUvc.
McCarthy, 3 Bradf. 7: Starr v. Hamilton, Deady, 268; Noel r. Ewlng,
9 Ind. 37; Jones' App. 57 Pa. St. 3o9.
3 Dartmouth Coll. t? . Woodward, 4 Wheat. 518; Berthelemy r. John-
son, 3 B. Mon. £0: Toleu r. Tolen, 2 Blackf. 407; Starr v. Pease, 8 Coun.
541; Masrulre V. Magulre, 7 Dana, 181; Townsend v. Griffin, 4 Earring.
440; Adains v. Palmer, 51 Me. 480; Cabell v. Cabell, 1 Met. Ky. 319;
Clark V. Clark, 10 N. H. 380; Cronise v. Cronlse, 54 Pa. St. 255. But see
Pouder v. Graham, 4 Fla. 23: State v. Fry, 4 Mo. 120; Bryson v. Camp-
bell, 12 Mo. 498. And see Houues V. Holmes, 4 Barb. 295.
4 Kelly v. McCarthy, 3 Bradf. 7; Starr v. HamUton, Deady, 268;
Noel V. Ewlng. 9 Ind. 37; Barbour v. Barbour, 46 Me. 9; Lucas v. Saw-
yer, 17 Iowa, 517; Magee v. Young, 40 Miss. 164; Lawrence v. Miller, 1
Sandf. 516: 2 N. Y. 245; In re Lawrence, 5 N. Y. Sup. 310; Moore v.
Mayor, 8 N. Y. 110.
5 Stone V. Bassett, 4 Minn. 298.
6 Potts V. Water-power Co. 9 N. J. Eq. 592; Potts ©. N. J. Arms Ac.
Co. 17 N. J. Eq. 395.
7 Martin r. Somerville, 3 Wall. Jr. 206.
8 Martin v. Somerville, 3 Wall. Jr. 206.
9 New Orleans v. Holmes, 13 La. An. 502; Iverson v. Shorter, 9 Ala.
713; Beck v. Burnett, 22 Ala. 822; Daily v. Burke, 28 Ala. 328; Cuiry v.
Landers, 35 Ala. 280.
10 Livingston v. Moore, 7 Peters, 46.1; Bald. 424; Bank ». Longworth,
1 McLean, 35; Dally v. Burke, 28 Ala. 328; Curry v. Landers, 35 Ala. 280;
McCormick v. Alexander, 2 Ohio, 285.
11 Tarpley v. Hamer, 17 Miss. 310.
12 Garrison v. Mayor, 21 Wall. 195; In re Broadway. 61 Barb. 483.
13 Evaas v. Montgomery, 4 Watts & S. 218; Patln v. Prejean, 7
La. 301; Woodbury r. Grimes, 1 Colo. 100; Teuipleton v. Home, 82 IlL
491.
14 Sullivan v. Brewster, 1 E. D. Smith, 631 ; Miller v. Moore, Ibid. 789.
15 Gordon t. Canal Co. 1 McA. 513; Brlen v. Clay, 1 E. D. Smith, M9;
Bolton t;. Johns. 5 Pa. St. 145. But see Kinney v. Slici.nau, Jd III. 530.
16 Van Rensselaer v. BaU, n N. Y. 100.
17 Stocking V. Hunt, 3 Denio, 274.
18 Drehman v. Stifle, 8 Wall. 53J; 41 Mo. 134.
19 Taggart r. McGinn, 14 Pa. St. 155.
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149 LIMITATION OF POWERS. Art. I, § 10
Right of redemption.— The right to redeem is no
part of the contract, and may be repealed at any time,i
but a right to redeem at any time within two years af fcer
sale under a mortgage cannot retroact.^ A statute may
^ve the mortgagor thQ right to remain in possession dur-
ing time of redemption; 8 but a statute providing that the
mortgagor shall not be liable for rent after the sale, is void
so far as it applies to prior contracts.* The legislature
cannot change the estate which the trustee is authorized
to sell, and extend the time for redemption; ^ but a stat-
ute may i^rescribe a shorter time for advertising a mort-
gage sale than existed at the time of the mortgage. ^ lie-
demption laws as to judgments on anterior contracts are
in conflict with this provision."^ A law authorizing the
redemption of property sold by forced sale impairs the
obligation of contracts. 8 The legislature cannot extend
the time for the redemption of lands sold for taxes,^ nor
apply appraisement laws to anterior contracts; i*^ so, laws
for the release and discharge of securities are in conflict,ii
and laws allowing the debtor to remove property are
void as to prior jud^ment--liens.i2 A law which gives the
mortgagor a period in which to redeem confers an equita-
ble estate and impairs the obligation of the contract ;i8
but when a mortgagor applies to a court for the enforce-
ment of his mortgage, he must take the remedy as he
finds it.i* The right to redeem from execution sale exists
solely by statute, which may be repealed at any time.i^
A State may provide that all judicial sales shall be
made subject to redemption, and this will not violate tlie
obligation of existing judgments, ^<5 or may provide for re-
demption from sale under a lien.i"^
1 Tuolnmne Bed. Co. v. Sedgwick, 15 Cal. 515; Holland v. Dicker^
son, 41 Iowa, 367. But see CargiU v. Power, 1 Mich. 369; Iverson v.
Shorter, 9 Ala. 713; Beck v. Burnett, 22 Ala. 822.
2 Howard v. Bugbee, 24 How. 461; 32 Ala. 713: Scale v. Mitchell, I
CaL401: Thome v. San Francisco, 4 Cal. 127; MaJony r. Fortune, 14
Iowa, 417. But see Iverson v. Shorter, 9 Ala. 713.
3 Heyward v. Jadd, 4 Minn. 483; Berthold v. Holman, 12 Minn. 335;
Berthold v. Fox, 13 Minn. 501.
4 Greenfield v. Dorris, 1 Sneed, 548.
5 HejrwardtJ. Judd,4MInn. 483; Goenen t>. Schroeder. 8 Minn. 387;
Carrol r. Rossiter, 10 Minn. 174.
6 James v. StuU, 9 Barh. 482.
7 Scobey v. Gibson, 17 Ind. 572; Ii^lehart r. Wolfln, 20 Ind. 32.
8 Bronson r. Klnzle, 1 How. 311; McCracken r. Hayward, 2 How.
608: Gantly v. Ewing, 3 How. 716: Howard v. Bugbee, 24 How. 464;
Weaverr.Maillot.15La.An.396; Blllmeyer».Evans,40Pa.St.324; Bunn
V. Crorgus, 41 Pa. St. 441 ; Oliver v. McClure, 28 Ark. 655; Scobey v. Gib-
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Art. I, § 10 LIMITATION OF POWERS. 150
son, 17 Ind. 572. But see Turner v. Watkins, 31 Ark. 429; Moore v. Mu^
tin, 38 Cal. 428.
f> Boblnson v. House, 13 Wis. 341: Dikeman v. DIkeman, 11 Paige,
484. But see Gault's Appeal, 33 Pa. St. 94.
10 Rosier v. Hale, 10 Iowa, 470.
11 Swift V. Fletcher, Minn. 550.
12 TUlotson r. Millard, 7 Minn. 513.
13 Bronson v. Kinzle, 1 How. 311 ; Grantly v. Ewlng, 3 How. 716.
But see Waldo v. Williams, 4 111. 264; Stone v. Bassett, 4 Minn. 296;
Hey ward v. Judd, Ibid. 483; Freeborn v. Pettlbone, 5 Minn. 277.
14 Heyward v. Judd, 4 Minn. 483.
15 Holland V. Dickerson, 41 Iowa, 367; Tuolumne Bed. Co. v. Sedx-
wick, 15 Cal. 515. But see Cargill v. Power, 1 Mich. 369.
16 Moore v. Martin, 38 Cal. 428: Turner v. Watkins, 31 Ark. 429: Tuol-
umne Bed. Co. v. Sedgwick, 15 Cal. 515. But see Oliver v. McCIure. 28
Ark. 555; Scobey v. Gibson, 17 Ind. 572; Inglehart v. Wolfin, 20 Ind. 52.
17 Templeton v. Home, 82 Dl. 491.
State power of taxation.— A tax upon a new sub-
ject, or an increased tax upon an old one, does not impair
the obligation of the contract.^ A statute imposing a tax
on a mortgage is valid.^ So, a tax on a loan may author-
ize the borrower to deduct the amount of the tax from the
interest. 3 A bond received as a security for the purchase
of property may be taxed to any extent required by the
State government.^ So, a tax upon the annual rent re-
served in leases does not impair the obligation of the con-
tract.s A State may tax bonds issued oy itself for bor-
rowed money. « A State cannot pass a law taxing a corpo-
ration when It violates the obligation of the contract. ? So,
a subsequent act, imposing additional taxation on shares
of stocknolders, impairs the obligation.^ A State may im-
pose a tax on its corporation as an entity as well as upon
the corporation stock, its capital, or its separate corpora
tion property, and this may be in proportion to the income
receivea as well as to the value ;9 or it may repeal a tem-
porary rate and impose another and higher rate.^^ A stat-
ute authorizing a tax according to a previous assessment
is not retrospective.il The provisions in this clause are a
limitation on the taxing power of the State, as well as
upon all its legislation, i^
1 North Mo. B. B. v. Magulre, 20 WaU. 46; 49 Mo. 490.
% Cook V. Smith, 30 N. J. 387.
a Maltby v. Beading ftc. B. B. Co. 52 Pa. St. 140.
4 Weston V. Charleston, 2 Peters, 449; Harp. 340.
5 Loring V. State, 16 Ohio, 590; Livingston v. HoUenbeck, 4 Barb. 9.
6 Champaign Bank v. Smith, 7 Ohio St. 42 ; People v. Home Ins. Co.
29 Cal. 533, explained in Murray v. Charleston. 96 u. S. 447.
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161 LIMITATION OF PO^VrRS. Alt. I» § 10
7 Washinofton Ualverslty v. Bouse, 8 Wall. 439; Home of the Friend
less V. Rose, 8 Wall. 430.
8 Farrington r. Tennessee, J» TT. S. 679.
9 Delaware R. R. Tax, 18 Wall. 232.
10 St. Joseph V. Hannibal & St. J. R. R. Co. 39 Mo. 476,
11 Locke V. New Orleans, 4 Wall. 172.
12 Murray v. Charleston, !)G U. S. 432.
IiioenBes. — A license is a contract, but revocable at the
will of the licenser, unless otherwise provided in the State
constitution.! If no bonus is given for the right, a subse-
quent levy of a tax is valid. -^ So, a license to sell liquor
is issued as a part of the police system of the State, and
is subject to modilication or revocation. ^ The license to
practice law or medicine may be modified in any manner
which the public welfare may demand, and a tax on the
license is not unconstitutional.^ If the license to erect a
dam in a navigable river is defeasible by the terms thereof,
it may be modified or revoked.* The certificate to a for-
eign corporation does not constitute a contract so as to
prohibit subsequent taxation by the laws of the State. ^
1 Phalen r. Virginia, 8 How. 163; 3 Hairing. 441; Calder v. Kurl>y,5
Gray, 587; Adams v. Hackett, 27 N. H. 289: Hlru v. Ohio, 1 Ohio St. 21;
Metrop. Bd. of Excise v.Barrle, 7 Tiff. 667; Bass v. Mayor, Meigs, 421;
Gregory v. Shelby, 2 Met.(Kj'.) 589; Freligh v. State, 8 Mo. 606; State v.
Sterling, 8 Mo. 697; State v. Hawthorn, 9 lio. 389.
2 Wendover r. Lexington, 15 B. Mon. 253.
3 Fell V. State, 42 Md.71; Calder v. Kurby, 71 Mass. 597: State v.
Holmes, 38 N. H. 225; Metrop. Bd. of Excise v. Barrie, 34 N. Y. 657;
Comm. V. Intox. Liquors, 115 Mass. 153.
4 State V. Fellowes^ 12 La. An. 344; State v. Waples, Ibid. 343; New
Orleans v. Turpen, 13 La. An. 56; Simmons v. State, 12 Mo. 268; State v.
Gazlay, 5 Ohio, 14.
5 Bmidle v. Del. ftc. Can. Co. 14 How. 80; 1 Wall. Jr. 275; Pratt o.
letrown, 3 Wis. 603; Monongahela Nav. Co. v. Coons, 6 Watts A S. 101;
Snsgaetaanna Can. Co. v. Wright, 9 Ibid. 9. And see Glover v. Powell,
10 IT. J. Eq. 211 ; Cranshaw v. State R. Co. 6 Rand. 245.
6 Home Ins. Co. v. Augusta, 93 U. S. 116.
Ibcemptioii from taxation.— The State right of tax-
ation can be waived only by express stipulation, ^ and
the intention to exempt must be clear.^ The legislature
may bind the State by contract so as to exempt property
from taxation,^ but the contract must be construed
strictly.-* If property be given to a society for certain
purposes, under a statute exempting such gifts, the stat-
ute is a contract with the donors, and sucn property is
exempt so long as it is used for the purposes oi the donee.*
A provision in the charter of an eleemosynary corporation,
or of a university, that its property shall be exempt, is a
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWERS. 162
contract and cannot be impaired. <5 A statute which pro-
vides that public grants lor pious and other uses snail
be forever exempt iias no effect on prior ^ants while it
remains in force, and may be repealed." If the exemp-
tion is a mere gratuity, is spontaneous, and no service or
duty or other condition is imposed, it may be withdrawn
at any time;® but if a statute for a valid consideration
stipulates that certain lands shall be exempt from taxa-
tion, it cannot pass a law to impair the obligation of the
contract,^ nor will the payment of taxes for twenty years
prevent the owner from claiming the exemption. ^^ If
a statute provides that all land purchased from the
United States shall be exempt from taxation for a certain
period, it cannot be taxed till the expiration of that time.^^
If the land is exempt the buildings erected on it are ex-
empt also ; 12 but if the interest in the buildings is created
entirely distinct from the interest in the lands, the build-
ings may be taxed although the land is exempt. ^^ if the
land be exempt it will be exempt in the hands of the
lessee ; i* but ii the lessee covenants to pay such taxes as
may be assessed thereon he cannot allege the unconstitu-
tionality of an act imposing a tax.^^ 1? the privilege of
exemption is annexed to the land it will pass to a pur-
chaser; 10 but it will not pass to a purchaser under a sub-
sequent act authorizing the sale,!^ and a subsequent stat-
ute may render it liable where it is conveyed without the
reservation of an annual rent.is
1 Pacific R. R. Co. v. Maarulre, 20 Wall. 42; Tomlinson v. Branch, 15
Wall. 460; Tomlinson©. Jessiip, 15 Wall. 4.>4; Providence R. R. v. Bll-
linjJTS, 4 Peters, 614; Charles River Bridge v. Warren Bridge, 11 Peters,
420; Turnpike Co. v. State, 3 Wall. 210; Jones & Co. v. Comm. 69 Pa. St.
137.
2 Gllman v. Sheboygan, 2 Black, 513; Rector &c. v. Philadelphia Co.
24 How. 302; Jones & Co. v^^Comm. 63 Pa. St. 137.
3 New Jersey v. Wilson, 7 Cranch, IGfi; Richmond R. R. Co. v-
Louisa R. R. Co. 13 How. 71 ; Dodijo v. Woolsey, 18 How. 331; Piqua Br.
Bk. V. Knoop, Hi How. 369; Von Hoffman r. Quincy, 4 Wall. 535; Jeffer-
son Br. Bk. V. Skeliy, 1 Black. 447; Washln.jfton Univ. v. Rouse, 8 Wall.
48:); Tomlinson v. Branch. 15 Wall. 460; Tomlinson v. Jessup, 15 Wall.
454; Pacific R. R. Co. v. Magiiire,20 Wall. 42; Erlo R. Co. v. Penn. 21
Wall. 4v>8; Gordon t). Appeals Tax Ct, 3 Har. 133; McGee v. Matliis, 4
Wail. 143; Home of the Friendless v. Rouse, 8 Wall. 430; WllmUiflrton
E. R. Co. V. Reid, 13 Wall. 2&4; Humphrey v. Pegues, 16 Wall. 244.
4 Weston ». Supervisors, 44 Wis. 242.
6 Atwater v. Woodbrldge, 6 Conn. 223; Osborne v. Humphreys, 7
Conn. 336; Parker ». Redtteld, 10 Conn. 490: Landon v. Lltchftela, 11
Conn. 251; Seymour v. Hartford, 21 Conn. 481; Herrick v. Randolph,
13 Vt. 525.
6 Home of The Friendless v. Rouse, 8 Wall. 430; Washington Uni-
versity V. Rouse, 8 Wall. 439; 42 Mo. 308.
7 Herrick v. Randolph, 13 Vt. 525.
Digitized by LaOOQ IC
153 LIMITATION or POWEBS. Art. I, § 10
8 Bector v. Philadelphia, 24 How. 300; 24 Pa. St. 229; Tucker v. Fep>
gnsoD,22 WsUl. 527; Brainerd v. Colchester, 31 Conn. 407 ; Lord v. LitGh<
field, 36 Goiin. 116: West Wisconsin R. R. Co. v. Trempealeau Co. »3 U.
8. 59S. And see Providence Bank v. Billings, 4 Wheat. 316; Fertilifr
Ing Co. tJ.Hyde Park, 97 U. 8. 666.
9 State V. Wilson, 7 Crancb, 164 ; 2 N. J. 300.
10 Landon v. Litchfield, 11 Conn. 251.
11 Thompson v. Holton, 6 McLean, 386. And see McGee v. Mathis, 4
WaU. 143.
12 Osborne v. Humphreys, 7 Conn. 335.
13 Parker V. Redfleld, 10 Conn. 490.
14 Osborne v. Humphrey, 7 Conn. 335; Landon r. Litchfield, 11 Comi.
2.51 ; Hardy v. Waltham. 24 Mass. 108 ; Matheny v. Golden, 5 Ohio St. 361 ;
Kumler v. Traber, 5 Ohio St. 442.
15 Hart V. Cornwall, 14 Conn. 228.
16 State V. Wilson, 7 Cranch, 164; 2 N. J. 300.
17 Armstrong v. Treasurer, 16 Peters, 281 ; 10 Ohio, 235.
18 New Haven v. Sheffield, 30 Conn. 160; Brainerd r. Colchester, 31
Conn. 407; Lord v. Litchfield, 36 Conn. 116.
Laxid grants. — A statute repealing a prior grant of
land is void.i A State cannot pass a law wnereby the es-
tate granted will be impaired or rendered null and void.^
An executed contract is impaired by a law operating to
divest any right or estate vested under a grant,s and any
attempt to destroy vested rights is unconstitutional. ^ A
subsequent statute imposing conditions not contained in
the srant is unconstitutional.* A grant of the right to
puri^iase cannot be impaired by a subsequent act.^ If a
party by payment of the purchase-money becomes enti-
tled to a grant, the State cannot by a subsequent act pro-
vide for a forfeiture of his right." A grant of land to a
railroad cannot bo subsequently revoked. » If a grant in-
cludes both sides of an unnavigablc river, a State cannot
by subsequent legislation compel the owner to alter a dam
already erected.'^ Statutes which affect the right of a pat-
entee of the State are in violation of the obligation of the
contract, 10 but a party may be required to establish the
genuineness of his certificate to be encitled to survey and
patent. 11 A statute cannot divest the innocent purchaser
from a grantee who procured his title by fraud, i^ The
property of an alien purchased under a special act cannot
be transferred to another by mere legislative i^ower. ^3 So,
a legislature cannot by a subsequent act provide a differ-
ent mode of perpetuating a trust. i* A law annulling con-
veyances and declaring tliat grantors shall stand seized of
their former estates is unconstitutional. i& A law which
restricts the rights of a claimant as against an occupant
of land is in violation of a compact between States; i^
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWEBS. 164
but a statute allowing an occapant to recover compensa-
tion for improvements does not impair the obligation of
the grant.i7
1 U. S. V. Minnesota Ac. B. B. Go. 1 Black, 35S; 1 Minn. 127.
2 Fletcher V. Peck, 6 Cranch, 87 ; Gaines v. Buford, 1 Dana, 481 : Peo-
ple r. Piatt, 17 Johns. 195; Crenshaw v. Slate Blv. Co. 6 Band. 245.
3 Phila. Ac. B. B. Co. v. Bowers, 4 Houst. 306.
4 U. S. V. Louisville &c. Can. Co. 4 DIU. 611.
5 Oaihes v. Buford, 1 Dana, 481.
6 U. S. V. Great Falls Manuf . Co. 21 Md. 119.
7 Winter v. Jpnes, 10 Ga. 190; Fogg v. Williams, 2 Head, 474.
8 Davis r. Gray, 16 Wall. 203.
^9 People V. Piatt, 17 Johns. 195: State v. Glenn, 7 Jones (N. C.) »1:
ComeUus r. Glenn, 7 Jones (N. C.J 512. v / « ,
10 People V. Piatt, 17 Johns. 195.
11 League r. DeYoung, 11 How. 185.
12 Fletcher r. Peck, 6 Cranch, 87.
13 Bonaparte v. Camden Ac. Co. Bald. 205.
14 Fletcher v. B. & B. B. B. Co. 89 Vt. 535.
15 Fletcher v. Peck, 6 Cranch, 87 ; Terrett ». Taylor, 9 Craaeb, 43:
Montgomery v. Kasson, 16 Cal. 189 ; Grogan v. San Francisco, 18 Cal.
690; Berrett r. Oliver, 7 Gill & J. 191.
16 Green v. Biddle, 8 Wheat. 1.
17 Albee v. May, 2 Paine, 74: Armstrong v. Jackson, 1 Blackf. 210:
Scott V. Mather, 14 Tex. 235. But see Brlstoe v. Evans, 2 Overt. 341 :
Nelson v. Allen, 1 Yerg. 360.
Grants. — A grant made for the pmrpose of public in-
struction is not subject to subsequent legislative control; i
but if a scholarship does not name the place of tuition,
the locality of the college may be changed.^ If parties
dedicate a square to public use, the legislature cannot
authorize its sale and use for a purpose foreign to the ob-
ject of the grant; 8 but subjecting tne land ot a grantee to
the payment of his debts does not impair vested rights
under the grant. ^ A grant of a portion of submerged
lands will not prevent the improvement of the remainder
bv the State. ^ The legislature may i)rohibit the use of a
place for a cemetery, although there is a covenant in the
grant that the place may be so used.<^ Where a religious
corporation is under a disability to convey by its charter,
a State mav authorize a sale; ? so, a statute providing for
the sale of lands by tenants in common, or joint tenants,
is valid. s A State may release its interest in an es-
cheated estate to the occupant.^ An act confirming a
deed defectively acknowledged does not impair the obli-
gation of contracts. ^<> Although the effect of a registra-
tion law is to render a prior deed fraudulent and void
Digitized by LaOOQ IC
wmmmm^
155 uMiTATiox OF powEBS. Art. I, § 10
against subsequent purchasers, it is not a law impairing
obligations.il A statute which perfects a voidable entry
and gives a patent therefor is valid, although it divests a
grant made after entry but before its passage. 12 A grant
of land by the United States to a State is on conditions,
and its acceptance is a contract. ^^
1 Terrell v. Taylor, 9 Crancb, 43 ; Grammar School v. Biirt 11 Vt. 632.
2 Houston V. Jefferson College, 63 Pa. St. 428.
3 Warren v. Mayor, 22 Iowa, 351.
4 Livlngstonv. Moore, 7 Peters, 460; Bald. 424.
5 Hollister v. Union Co. Conn. 436; Lansing v. Smith, 8 Cowen, 146.
6 Coates r. New World, 7 Cowen, 585; Presb. Church v. N. Y. 6 Cow.
538. And see Lake View v. Rose Hill Cemetery, 70 Ul. 191.
7 Barton's Appeal, 57 Pa. St. 213.
8 Bichardson v. Monson, 23 Conn. 94.
9 Mulligan V. Corbhis, 7 WaU. 487.
_ lUghi „ , ^ ,
Brinton «. Bievers, 12 Iowa, 389; Maxey v. Wise, 25 Ind. 1; Bell v. Per-
kins, Peck, Tenn. 261; Barton t>, Morris. 15 Ohio, 408; Chestnut v.
Shane, 15 OhiOt599: Joumeay v. Gibson, 56 Pa. St. 57; Bamet v. Bar-
net. 15 Serg. & B. 72; Tate v. Stooltzfoos, 16 Serg. & R. 35. And see
Pearce v. Patton, 7 B. Mon. 162.
11 Jackson r. Lamphire, 3 Peters, 280; Stafford r. Lick. 7 Gal. 479;
Tucker V. Harris, 13 Ga. 1; Boston v. Commissioners, 16 Ga. 102; Suc-
cession of Nelson, 24 La. Ann. 25; Bochereau v. Delacroix, 26 La. An.
964 : Yarrick v. Briggs» 6 Paige, 323 ; 2 Wend. 543 ; Miles v. King, 6 Bich.
N. 3. 146.
12 Williams v. Norris, 12 Wheat. 117.
13 McGeev. Mathls,4WaU.156.
Vested rights.— A right is vested when it has already
become a title legal or eq^uitable,! and the legislature h£is
no power to divest titles,^ or legal or equitable rights pre-
viously vested,^ or to vest them in another;* so, vested
Tights acquired by a statute granting new remedies, or en-
larging Old ones, are beyond the reach of the legislature,
and the repeal of the statute will not affect them.^ The
legislature cannot take away vested rights, nor create a
cause of action for which there was no remedy at the time
of its occurrence. s Even if rights have grown up under
a law of somewhat ambiguous meaning, the legislature
cannot interfere with them,^ but an ex post facto law
which does not apply to crimes, impair the obligation of
contracts, or divest vested rights, is not unconstitutional. ^
An act of the legislature is not to be construed to operate
retrospectively so as to take away a vested right. » A stat-
ute is not objectionable because it purports to operate on
Digitized by LaOOQ IC
Art. I, § 10 IiIMITATI027 OF POWERS. 156
prior conting^ent or qualifiecL rights, but only where it op-
erates on vested rights, i<^ acquired under existing laws."
A State may pass a retrospective law impairing ner own
rights. 12 If an act of the legislature is within the legisla-
tive power it is not a valid objection to it that it divests
vested rights. Such an act is not within the constitu-
tional prohibition, however repugnant it may be to the
principles of sound legislation. ^^
1 BicliarasoQ v. Akin, 87 m. 138.
2 Hclmt7. Webster, 85 m. 116.
3 Bunn t>. Morrison, 5 Ark. 217 ; Grissora v. Hill, 17 Ark. 489.
4 Koenig v. Omaha &c. B. B. Co. 3 Neb. 383.
6 Memphis ©. U. S. 97 U. S. 293.
6 Coosa Biv. B. B. Co. V. Barclay, 30 Ala. 120.
7 McLeod v. Burroughs, 9 Ga. 213.
8 New Orleans v. Pontz, 14 La. An. 853: New Orleans v. Gordiyl<dle,
13 Ibid. 260; Bay v. Gage, 36 Barb. 447; Hlnton v. fflnton, PhllL (N. C.)
410; TUton v. Swift, 40lowa, 78; Lane v. Nelson, 79 Pa. St. 407.
9 Dash r. Vankleck, 7 Johns. 477.
10 Clarke v. McCreary, 40 Miss. 347.
U Society &c. v. Wheeler, 2 Gall. 139. And see Nelson r. Allen, I
Yerg. 360; Officer v. Young, 5 Yerg. 320.
12 Davis V. Dawes, 4 Watts & S. 401.
13 Lane v. Nelson, 79 Pa. St. 407.
Impairment of rights.— If the right be impaired by a
subsequent statute the law is void,i but the repeal of a
statute before a party has taken all the steps necessary to
give him a right under it does not impair the right.* A
statute requiring the submission of a claim under a con-
tract before a board of examiners for approval is void; 8
so, a prohibition to sue is an impairment of the obliga-
tiou,^ as a statute prohibiting persons aiding the Kebellion
from prosecuting or defending actions, s A provision in a
constitution that prohibits the enforcement of a contract
for slaves is void;" or that deprives a creditor of his rem-
edy on a judgment against a municipal corporation for-
ever, unless the legislature shall provide for its payment ; "
so, a retrospective law depriving a party of his right to
enforce a contract, if taxes have not been paid, is void.s
A statute prohibiting the transfer of choses in action, and
any action thereon after the transfer, is unconstitutional.^
The right to institute ejectment is part of the mortgage
contract, and cannot be prohibited by statute ;io so, a
statute which deprives a person of his right to recover a
rent previously paid to the marshal is unconstitutional. ^i
The right of a purchaser to a tax-sale deed cannot be
Digitized by LaOOQ IC
107 LIMITATION OF POWEBS. Alt. 3^ § 10
taken away by subsequent legislation. 12 An act empow-
ering courts and juries to remit interest is void as to prior
contracts. 13
1 Bronson v. Ktozle, 1 How. 311 : McCracken v, Hajrward, 2 How. 008;
Yon Hoffman v. Qnincy, 4 Wall. 535.
2 Van Home v. Dorrance, 2 Dall. 304iMobUe B. B. Go. v. State, 99
Ala. 573; Brinsfleld v. Carter, 2 Ga. 143; wise v. Bogers. 24 Gratt. 109;
Huntsman v. Bandolph, 5 Hayw. 263; State v. Gray, 4 Wis. 380.
3 HcCauley v. Brooks, 16 Cal. 11.
4 Beers v, Arkansas, 20 How. 527 ; Scarborough v. Bugan, 10 CaL 80ft.
5 Davis V. Pierse,? Minn. 13; McFarland v. Butler, 8 Minn. 110;
Jackson v. Butler, 8 3Iinn. 117.
6 Whits V. Hart, 13 Wall. 646; 39 Ga. 306: French v. Tomlin, 19 Am.
Law Beg. 641; Jacoway v, Denton, 25 Ark. 625; McNealy v. Gregory, 13
Fla. 417. But see Shorter v. Cobb, 39 Ga. 285; Armstrong v. Lecompte,
21 La. An. 528; Dranguet r. Bost, 21 La. An. 538.
7 Hadfieldv.N.Y.6Bobt.501.
8 Walker v. Whitehead. 16 Wall. 314; 43 Ga. 537; Lathrop v. Brown,
1 Woods, 474 ; Griffiths v. Shipp, 49 Ga. 231 ; Kimbro v. Bank, 49 Ga. 419;
Mitchell V. Gothrans,49 Ga. 125; Gardner v. Jeter, 49 Ga. 195; Dough*
erty v. Fogle, 50 Ga. 464.
9 Planters' Bank v. Sharp, 6 How. 301; 12 Miss. 17; Jemison v.
Planters' Bank, 23 Ala. 168; Montgomery v. Galbraith, 19 Miss. 565:
Mclntyre r. Ingraham, 35 Miss. 25; Grand Gulf B. B. Co. v. State, IS
Miss. 428. And see Hyde v. Planters' Bank, 8 Bob. (La.) 416.
10 Mundy V. Monroe, 1 3Ilch. 68.
11 Clarkv.MitcheU,64Mo.564.
12 Bruce V. Schuyler, 4 Gilm. 221.
13 Boberts v. Cocke, 28 Gratt. 207 ; Cecil v. Deyerle, Ibid. 775; "Kent «.
Kent, Ibid. 840; Prettow v. BaUey, 29 Gratt. 212.
Wliat not an impairment of rights.— A statute
may provide that no suit shall be brought on a promise
except it be in writing,^ or may allow suits on an ofScial
bond instead of Bcire facias on the judgment, 2 or may re-
peal a law which prohibited suits acainst Indians." A
statute may require a creditor to exhaust his securities
before bringing suit on his claim,* or may require holders
of certificates of purchase to give notice to occupants of
land of his intent to apply for a deed a certain time be-
fore his aoplication/' or may require suitors to take a test
oath of loyalty, s A statute may enact that suit must be
brought in the name of the real party. ^ A statute may
allow the holder of a detached coupon to sue thereon,^ or
may allow a purchaser to recover money paid for taxes
and costs, ^ or may authorize the grantee of a rent charge
to sue at law in his own name,^^ or allow an administrator
de bonus non to sue, in the name of the State, on the bond
of his predecessor, 11 or may allow one firm to sue another,
although some are members of both firms, ^2 or may
Dksty Fed. Con.— 14.
Digitized by LaOOQ IC
A
Art. I, § 10 I^IMITATION OF POWBBS. 158
antliorize one plaintiff to recover, although the other does
not establish his title^i* or may authorize the assignee of
a chose in action to sue in his own nsuue,^^ or may render
a party liable to suit by repeal of an act under which he
was exempt, IS or may require that the maker and indorser
of a note be sued m a joint action. ^^ A s tat ate may
authorize an administrator to apply to the court for the
sale of real estate of an intestate to pay his debts.i" or
may allow a guardian to sell real estate and invest pro-
ceeds in other securities, ^^ or may discharge a testament-
ary trustee on his own request and appoint another. ^^ A
statute may grant the right to an appeal, or allow appeal
without security for costs, or permit one of several to
appeal,20 or may take away the right of appeal,*-^^ or may
authorize the filing of a bill of review,22 or may allow a
new trial or an appeal ;28 but a statute declaring a judg-
ment void, and granting a new trial, is void;2* yet a law
affecting judgments not rendered on a contract is valid.^
A statute may provide that no scire facias shall be issued
to revive a dormant judgment.20 A debtor in default has
no vested right to have his property sold in any particular
way .2" A statute may change the law of costs as to pend-
ing judgments,28 but not as to rights already vested,^^ or
may reduce costs below the legal amount, or deny them
altogether.®)
1 Kiugsley V. Cousins, 49 Me. 91.
2 White r. Wilklns, 24 Me. 299.
a Stokes r. Bodman, 5 B. 1. 405.
4 Swift V. Fletcher, 6 Minn. 550.
6 Curtis v. Whitney, 13 Wall. 68.
6 Beirue v. Brown, 4 West Va. 72.
7 Hancock v. Bitchle, 11 Ind. 48.
8 Augusta Bank v, Augusta, 49 Me. 507.
9 Smith V. Merchand, 7 Serg. & B. 260.
10 Van Bensselaer r. Hays, 19 N. Y. 68.
11 Grahain V. State, 7 Ind. 470.
12 Hepburnv. Curt8,7 Watt8,300. »
13 mnckle r. Biftert, 6 Pa. St. 196.
14 Harlan v. Sigler, Morris, S9; Ford v. Hale, 1 Mon. 23.
15 Stokes v. Bodman, 5 B. 1. 405.
16 McMillan v. Sprague, 4 How. (Miss.) 647.
A\ Wa?^^^ *• B««*on» 2 Wall. 210. And see Brenham v. Story, »
CaL 179; Bozier v. Fagan, 46 IlL 404.
18 liObrauo V. Nelligan, 9 Wall. 295.
19 Williamson v. Snydam, 6 Wall. 723.
Digitized by LaOOQ IC
n^mw
^^ LIMITATION OF POWERS. Alt I, § 10
V. Browjifleld. 2 WattsA S.m, ^^^^' ^ ''• ^- Marsh. 563; Braddei*
21 Grover v. Coon, 1 N. Y. 536.
22 Sampereac v. U. S. 7 Peters, 222.
23 Calder ». BuU, 3 Dall. 886; Baltimore Ac. B. B. Co » NeahU in
24 Weaver v. Lapsley, 43 Ala. 224.
25 Sprott V. Eeld, 3 G. Greene, 489.
26 Parker v. Shannonhouse, Phillips (S. C.) 209.
27 Tuolumne Bedemp. Co. v. Sedgwick, 15 Cal. 516.
28 Taylor v. Keeler, 80 Conn. 324.
29 State V. Auditor, 33 Miss. 287.
rfs. b[ Dtet.^'! jI'27?.^'^**^*' Potterr. Sturdevant, 4 Me. l54;Bader
Corporations.— If the foundation of a corporation la
private, though under the charter of the Government the
corporation is valid.i A corporation may he private/ and
yet the charter may contain provisions of a purelv public
character,2 and a bounty may as well be bestowed on a
private as on a public corporation.3 Where the propertv
of a corporation is private, it is a private corporation^ but
where the whole interests and franchises are the exclusive
property and domain of the Government, it is a public
corporation.5 A corporation created for the purpose of
investing school funds for a town is a private corporation «
An act which impairs the charter by enlarging the poweM
of the State over the body corporate, or by abridging the
franchise, or by altering the charter, is voidi^ so, a statute
passed after granting the charter, annexing a cause nf
forfeiture unknown to the charter, is uncoSstitutional 8
Ihe grant of an annual appropriation in a charter, in con-
sideration of subscriptions by private individuals ia a
contract, and cannot be repealed.^ The legislature mav
require a corporation to make annual reports lo or mlZ
S2Ji"i? "" ''^''^^''' proportion of its officers to re'side in the
State,li or may make a failure to comply with police reor.
ations a ground for forfeiture of charter, ^ or mav chaS^
the mode of assessing its propertv. i8 A coninro;?^"^
subject to le^slative control wllere it is a mere ffin^^J?
or agent of tlie State, i* but the legislature cann^fS,??-®"^
a corporation to forfeiture of its Wctoe fo^ anv no^®*'*
not sufficient when such corporation w^ c/eated is^T
State may revive a corporation and legalize contracte
Digitized by LaOOQ IC
Art I, § 10 LraoTATiON of powabs. 100
made by it after forfeiture of its charter, or it may trans-
fer the property of an insolvent corporation to a new one.^®
It may provide for a receiver upon dissolution of the cor-
poration, i'' The dissolution does not impair the obligation
of its contracts. 18
1 Dartmouth Coll. v. Woodward, 4 Wheat. 618; Trustees v. State, 14
How. 26S; 2 Ind. 293; Allen v. McKean, I Sum. 276; Louisville v. Univer-
sity, 15 B. Mon. 642: Begents v. Wllliauis, 9 Gill. & J. 365: Trustees «.
Bradbury. U Me. 118; Yarmouth v. Yarmouth, 34 Me. 411; Brown v.
Hummel, 6 Pa. St. 86; Plymouth v. Jackson, 15 Pa. St. 44; State o. Hey-
ward, 3 Bich. 389.
3 Begents V. Williams, 9 GilL ft J. 365.
3 Allen v. McKean, 1 Sum. 276; Louisville v. University, 15 B. Mon.
642: Begents v. Williams, 9 6111. & J. 365; Montgomery Acad. v. George,
14 La, 395; Sheriff v. Lowndes, 16 Md. 357; Bichardson v. Brown, 6 Me.
855; Yarmouth v. Yarmouth, 34 Me. 411; State v. Heyward, 3 Blch. 389.
4 Piqua State Bank v. Knoop, 16 How. 369; 6 Ohio St. 342.
5 Dartmouth Coll. v. Woodward, 4 Wheat. 578; Allen v. McKean,
1 Sum. 276; Begents t;. Williams, 9 GiU. & J. 365; University v. Maultsby,
8 Ired. Eq. 257.
6 Trustees r. Bradbury, 11 Me. 118.
7 Pbila. &c. B. B. Co. v. Bowers, 4 Houst. 506; Commercial Bank v.
State, 14 Miss. 439.
8 Washington Br. Co. v. State, 18 Conn. 53; People v. Plankroad Go.
9 Mich. 285; Aurora T. Co. v, Holthouse, 7 Ind. 59; State v. Tomhecbee
Bank, 2 Stew. 30.
9 Visitors V. State, 15 Md. 330.
10 State V. S. P. B. B. Co. 24 Tex. 80.
11 State V. S. P. B. B. Co. 24 Tex. 80.
12 State V. S. P. B. B. Co. 24 Tex. 80. The provisions of a eliarter
cannot exempt a corporation or its officers from regulations made in
the exercise of police powers of the State— Cummings v. SpaooticHnt.
5Mo.Ct.App.2l.
13 Bank 0. Hamilton, 21 111. 53.
14 Louisville v. University, 15 B. Mon. 642: Lincoln Bank v. Btebard*
son, 1 Me. 79; Bleakney r. Farmers' Bank, l7 Serg. & B. 64; ^acer r.
Young, 5 Yerg. 320.
15 State V. Tombeckbee Bk. 2 Stew. 30.
16 Mndge v. Commissioners, 10 Bob. (La.) 460.
Carey, 5 Ga. 253 : Aurora T. Co. r. Holthouse, 7 Ind. 59; Bea4 «. Frank-
fort Bank, 23 Me. 318: Sav. Inst. v. Maken, 23 Me. 360: I^Mthersv.
Shipbuilders' Bank, 40 Me. 386; Nevitt v. Bank, 14 Miss. 5l|! Bnydam
r. Beceivers, 3 N. J. Eq. 314; Bank of Cohmibiao. Att. Gen. rwena.S88.
18 Mumma v. Potomac Co. 8 Peters, 281.
Digitized by LaOOQ IC
161 UHITATION OF POWEBS. Art. Z; § 10
Corporate liability. — A statute may render the cor- •
g oration liable for its debts, ^ or may render the stock-
olders personally liable,2 or may relieve stockholders
who subsequently subscribed from personal liability.* A
statute repealing a law imposing a personal liability on
stockholders cannot affect debts contracted before its
passakge.-^ A statute may subject the property and fran-
chise of the corporation to the payment of its debts,^ or
may provide means for enforcing debts against it. ^ Where
a statute enacts that a corporation shall be responsible for
its debts, rights acquired while it is in force cannot be
impaired. 7 A State cannot enact that a writ of seques-
tration shall not issue, unless the corporation is guilty of
mismanagement or willful delay in discharging its liabil-
ities. 8 The legislature may render a corporation liable to
suit in anv county if it does not injuriously affect its coj;;-
porate rignts.^ It may provide that a corporation be sued
in the county where a tort by it committed, occurs. ^^ it
may give to a legal representative a right of action for
injuries sustained, ^^ or may take from a creditor the right
to proceed against stockholders and vest such right in a
trustee, 12 or may modify and control summary proceed-
ings against stockholders, is or may change the mode of
process against the corporation,i4 or may allow attach-
ment of property in hands of stockholder without previ-
ously exhausting the assets of the corporation. is A stat-
ute may authorize a corporation to sue in its own name.i<J
1 Peters v. Railroad Co. 23 Mo. 107; Grannahaii r. Railroad Go. 30
Mo. 546.
2 Coffin V. Rich, 45 Me. 507; Stanley v. Stanley, 26 Me. 191; Gray v.
Coffin, 63 Mass. 193.
3 OchUtree r. Railroad Co. 21 Wall. 249.
4 Hawthorne v. Calif, 2 Wall. 10; Conant v. Van Schaick, 24 Barb. 87.
But see Coffin v. Rich, 46 Me. 607; Richardson ». Akin, 87 111. 138.
5 I*ouisvIlle T. Co. v. Lounsbury, 2 Met. (Ky.) 165.
6 Foster v. Essex Bank, 16 Mass. 245.
7 Strubel v. Milwaukee &c. R. R. Co. 12 Wis. 67.
8 Penrose t;. Erie Can. Co. 56 P». St. 46.
9 Howard v. Insurance Co. 13 B. Mon. 282; Sanders v. Hillsborongh
Ins. Co. 44 N. H. 238.
10 Itovis V. Central R. R. Co. 17 Ga. 323.
11 Board v. Scearce, 2 Duval, 676; Southwestern R. R. Co. v. Panlk,
24 Ga. 356.
12 Story r. Furman, 25 N. T. 214.
13 £z part« Northeast. R. R. Co. 37 Ala. 679.
14 Calro&cR. R. Co.r. Hecht,29Ark.661.
15 Smith V. Bryan, 34 Uli 264.
16 Crawford r. Bank, 7 How. 279.
Digitized by LaOOQ IC
Art. I, § 10 LnoTATioN of pomtebs. 162
Corporate franchiseB.— A grant of a franchise is not
distinguishable from a grant of other property.^ The
benefit derived to the community is the consideration,^
of the suflaciency of which the legislature is the exclusive
judge.s A charter is a contract between the State and the
stockholders, both executed and executory,* and every
valuable privilege given by the charter is a contract.* No
consideration is necessary to render the grant irrevoca-
ble.^ A charter is a stipulation that the powers specially
granted are not to be withdrawn or diminished, ^ and the
implied powers conferred are as sacred as those expressly
given,8 and these are implied from those given.* Such
contracts are to be construed liberally, ^^^ but nothing can
be taken by intendment against the State, i^ Where the
right under the charter is claimed by construction, only
the scope and evident design of alltne provisions of the
charter must be considered.!*^ Where the instrument is
susceptible of two meanings, that which works least
harm to the State is to be adopted. i« The exercise of a
corporate franchise being restrictive of individual rights,
it cannot be extended beyond the letter and spirit of the
act of incorporation, i* If the charter allows a reasonable
time to comply with the conditions whereby it may obtain
interest in land, the legislature cannot sliorten that time
or impose any liability if it choose to avail itself of all the
time allowed.io A general law for the organization of
corporations is a special act as to each corporation. i«
The legislature cannot contravene the provisions of the
charter, 17 and any variation in the grant of a franchise
violates; 18 \)xxt mere endowments of existence are held
subject to the control and modification of the legislature. ^^
So, the legislature may reserve the right to amend, alter,
or repeal the terms of the franchise .20 The right to with-
draw a franchise includes every power or privilege which
is a part of the franchise.''^!
1 Dartmouth College v. Woodward, 4 Wheat. 518; Benson v. N. Y. 10
Barl). 223; Enfield Br. Co. v. Conn. Rlv. Co. 7 Conn. 28; Derby T. Co. v.
Tatka, lOConn.622; Washingrton Br. Co. v. State, 18 Conn. 53; Canal
Co. V. Railroad Co. fQili &J.\.
2 Dartmouth College v. Woodward, 4 Wheat. 518; Home of the
Friendless r. Bouse, 8 WaU. 430; Regents r. Williams, 9 Gill & J. 385.
3 Piqua Bank v. Knoop, 16 How. 369; 6 Ohio St. 342.
4 Dartmouth College v. Woodward, 4 Wheat. 656; McG^ee v. Mathls,
Ibid. 143; Fletcher r. Peck, 6 Cranch, 87; Terrett v. Taylor, 9 Craach,
43; Town of Pawlett v. Clark, 9 Cranch, 292; Piqua Bank v. Knoup, 16
How. 369; Dodge v. Woolsey, 18 How. 331: Mechanics A Farmers'
Bankv. Debolt, 18Uow. 380; Mechanics & Farmers' Bank v. Thomas,
1'3 How. 384; Skelly.v. Jefferson Bank, 1 Black, 436; Matheny v. Qolden,
5 Ohio St. 861; Ross Co. Bank v. Lewis, ft Ohio St. 447; Allen v. Bncb-
anan, 20 Pitts. L. J. 128; Providence Bank v. Billings, 4 Peters, 614;
Digitized by LaOOQ IC
163 LIMITATION OP POWERS. Alt. I, § 10
QoTdonv. Appeal T. C. 3 How. 133; Planters' Bank v. Sharp, 6 How. 311;
Woodruff t>. irapnall, 10 How. 100; Curran v. State, 15 How. 304; Fur-
man v. Nlchol, 8 Wall. 44 ; BincjharaptouBridffeCase^S Wall. 72; Home
of the Friendless r. Rouso, 8 Wall. 430; Chlcajyo &c. "R. R. Co. v. Iowa,
94 U. S. 161; Ohio &c. Ins. Co. v. Dobolt. 16 How. 416; Dodge v. Woolsey,
18 How. 331; Young t?. Harrison, Ga. 130; n Ala. 235; Enfield Br. Co. r.
R. R. Co. 17 ConnT454; Mich. St. Banlt »._Hastings, 1 Dou?. 226; 9 Ga.
517; Mayor r. Baltimore &c. R. R. Co. 6 Gill, 288; Bank of Pennsylva-
nia «. Commonwealth, 7 Harris, 144; Canal Co. v. R R. Co. 4 Gill & J.
1 : Norrls v. Abiijardon Acad. 7 Gill & J. 7 ; Regents v. Williams, 9
GUI & J. 365; Bruffltt v. Great W. R. R. Co. 25 111. 353; People v. Mayor
of Brooklyn, 4 N. Y. 419; Bank v. Bank of Capo Fear, 13 Ired. 75; 21
Ohio, 564; 10 Pa. St. 142; Philadelphia &c. R. R. Co. v. Bowers, 4 Houst.
.WB; Worsley ». Second Muuiclpsility, 9 Rob. (La.) 324; Olive v. Lee's
Bank221 N. Y. 9; Keith r. Clark, 2 South. L. Rev. 27 ; Backus «. Lebanon,
11 N. H. 19: Grammar School r. Burt, 11 Vt. 632; 15 Wall. 495; 1 DiU. 258;
Derby T. Co. v. Parks, 10 Conn. 641.
5 Flqna Bank v. Knoop, 16 How. 389; 6 Ohio St. 343.
6 Derby Turnpike Co. v. Parks, 10 Conn. 622.
7 Commonwealth v. Farmers' Bank, 38 Mass. 642 ; Thorite v. Biurllng-
ton Ac. R. R. Co. 27 Vt. 140.
' 8 Commercial Bank V. State, 12 Miss. 43f); People v. Manhattan Co.
9 Wend. 351.
9 Payne v. Baldwin, 11 Miss. 661 ; Commercial Bank v. State, 12 Miss.
439.
10 Blnghampton Bridge v. Chenaixgo Bridge, 3 Wall. 74; 27 N. Y. 87.
11 Charles RIv. Br. v. Warren Br. 11 Peters, 544; Jefferson Br. Bank
V. SkeUy, 1 Black, 446.
12 Maysvllle T. Co. v. How. 14 B. Mon. 426.
13 Blnghampton Bridge v. Chenango Br. 3 WaU. 51 ; 27- N. Y. 87.
14 Providence Bank v. Billinors, 4 Peters, 514; Charles Rlv. Br. v.
Warren Br. 11 Peters, 420; Mills v. St Clair Co. 8 How. 539; Planters*
Bank v. Sharp, 6 How. 301; 12 Miss. 17; Ohio Trust. Co. v. Debolt, 16
How. 416; 1 Ohio St. 563; Richmond R. R. Co. v. Louisa R. R. Co. IS
How. 71 ; Enfield Br. Co. v. Conn. Riv. Co. 7 Conn. 28; Hartford Br. Co.
». East Hartford, 16 Conn. 14.1; Hartford Br. Co. v. Union Ferry Co. 29
Conn. 210; McLeod v. Burroughs, 9 Ga. 213: Turnpike Co. v. Railroad
Co. 10 Gill <& J. 392; Tuckahoe Can. Co. v. Railroad, 11 Leigh, 42; Col-
lins r. Sberman, 31 Miss. 679.
15 Nichols r. S. & K. R. R. Co. 43 Mo. 353.
16 Plqua Bank v. Knoop, 16 How. ZQd\ 6 Ohio St. 342.
17 State V. Noyes, 47 Me. 189. Nor can it Impair rights thereunder
unless it provides Indemnity —Enfield Br. Co. v. Conn. Rlv. Co. 7
Conn. 28.
18 Enfield Br. Co. v. Conn. Riv. Co. 7 Conn. 23.
19 Bank V. Hamilton, 21 111. 63.
20 Peck V. Chicago & N. W. R. R. Co. 6 Biss. 181 ; Griffin v. Kentucky
Ins. Co. 3 Bush, 592; Commonwealth v. Fayette Co. R. R. Co. 65 Pa. St.
452; Beer Co. v. Massachusetts, 97 U. S. 25; Butler v. Walker, 80 HI. 345;
Trustees of University r. Winston, 5 Stewt. & P. 17.
21 Central B. B. & B. Co. v. Georgia, 64 Ga. 420: Atlantic & Gulf B.
B. Co. 9. Georgia, 7 Reporter. 324.
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWSBS. 161
Exemption from taxation.— The exemption of a cor-
poration from taxation must be clear and express, i It is
not necessary that a bonus should be received to make
the contract binding.^ A provision exempting a corporar
tion from taxation applies not merely to the State, but to
every public corporation created by it.^ So long as a cor-
poration uses its property for its original purposes the ex-
emption continues.^ The exemption includes all that is
obviously appropriate and convenient to carry into effect
the franchise granted, and to its objects and its use,^ in-
cluding real and personal estate requisite for the success-
ful prosecution of its business.^ Exemption from all tax-
ation includes exemption from a privilege tax," but not
from an assessment for beueiits arising from opening or
improvement of a street.^ A privilege that a certain
rate of taxes shall be paid in lieu of all taxes to the State
does not exempt from liability for municipal taxes'^ nor
^m a school tax.io Merely exempting from taxation
without consideration is not a contract, and may be re-
pealed. ^^ A provision exempting a corporation from tax-
ation applies to its property as well as to its franchise, 12
but not to its bonds.i^ if a charter merely exempts the
corporation and its property the exemption does not pass
to a party who purchases property at a sale under mort-
gage or execution;!* but if the State makes immunity
from taxation transferable, it cannot tax property in the
hands of a purchaser. ^^ If the charter stipulates for ex-
emption of the property from taxes,no tax can be assessed
thereon, 16 if all property is used for necessary purposes;
and property not so used may be taxed, i? but not prop-
erty used, although it may be used by others, is if the
charter authorizes to build and rent a building, it exempts
the property leased as stores. ^^ Exempting the property
of a corporation exempts its franchise.20 If the right is
reserved to alter the charter the right to taxis conferred.^!
1 Providence Bank v. Billingrs, 4 Peters, 514 ; Portland Bank 9. Ap-
thorpe, 12 Mass. 252 ; Herrick v. Randolph, 13 Wall. 531 ; Judson v.
State, Minor, 150; North Mo. B. R. Go. v. Alaguire, 20 Wall. 46; 49 Mo.
490; Erie B. Co. v. Pennsylvania, 21 Wall. 492; Jones &c. Co. v. Comm.
69 Pa. St. 137.
2 Plqua Bank v. Knoop. 16 How. 369; 6 Ohio St. 342.
3 Mayor v. Bait. &c. B. B. Co. 6 Gill, 288; Blchmond v. B Ac
R. R. Co. 21 Oratt. 604 ; Bank of Cape Fear v. Edwards, 5 Ired. 516:
State Bank v. Charleston, 3 Rich. 342.
4 Washington Univer. r. Rouse, 8 Wall. 439; 42 Mo. 308.
6 State V. Georgia R. R. <& B. Go. 54 Ga. 423 : State v. Mansfield, 23 N.
J. 510; State v. Flavell, 24 N. J. 370; State v. Powers, 24 N. J. 400: State
V. Blundell, 24 N. J. 402; State v. Haight, 25 N. J. 40; State v. Coflector.
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^PV^ViWVi
165 LIMITATION OF POWERS. Art. I, § 10
26 N. J. M9; Cook v. State, 33 K. J. 474; State v. Hancook, 35 N. J. M7;
State V. Woodruff, 36 N. J. 94; State v. CoUector, 38 N. J. 270.
6 Wilmington &c. B. B. Go. v. Beed, 13 Wall. 264.
7 Grand Gulf &c. B. B. Co. v. Buck, 53 Miss. 246.
8 State Home Socl. r. Mayor, 35 N. J. 157; City v. Society, 24 N. J.
385; Mayor v. Proprietors, 7 Md. 517; Sheehan v. Good Samar. Hosp.
50 Mo. i55. Bat see St. Paul &e. B. B. Co. r. St. Paul, 21 Minn. 526;
State V. Newark, 27 N. J. 185.
9 Lexington v. AulltJO Mo. 480: Paris v. Fanners' Bank, 30 Mo. 575:
City V. Hannibal &c. R. B. Co. 39 Mo. 476 ; Pac. B. B. Co. v. Cass, 53
Mo. 17.
10 Livingston v. Hannibal &c. B. B. Co. 60 Mo. 516.
11 St. Louis &c. B. B. Co. V. Loften, 10 Ark. 693; Holly Springs &c.
Co. V. MarsbaU, 52 Miss. 281 : Sandusky Bank v. Wilbor, 7 Ohio St. 481;
People V. Commissioners, 47 N. T. 501; 53 Barb. 70; Hospital v. Phila-
delphia, 24 Pa. St. 229; State r. County Treas. 4 Bich. N. S. 520; Jones
Ac. V. Comm. 69 Pa. St. 137. So, a promised forbearance from taxa-
tions is only a bounty or gratttity--Prov. Bank v. Billings, 4 Wheat.
316; Fertilizing Co. v. Hyde Park, 97 U. S. 666
12 Camden &c. B. B. Co. v. Commissioners, 18 N. J. 71. But see Mn<
nicipality v. Commercial Bank, 5 Bob. (La.) 151.
13 State V. Branin, 23 N. J. 484.
14 Morgan v. Louisiana, 93 U. S. 217; Trask v. Maguire, 18 Wall. 391.
15 St. Paul Ac. B. B. Co. v. Parcher, 14 Minn. 297; State v. WiuouA
Ac. B. B. Co. 21 Minn. 315; A. Ac. B. B. Co. r. Allen, 15 Fla. 15.
16 Hardy v. Waltham, 24 Mass. 108.
17 State V. Love, 37 N. J. 60.
18 State V. Betts, 24 N. J. 555.
19 State V. Leester, 29 N. J. 541.
20 Wilmington B. B. Co. v. Beid, 13 Wall. 264.
21 Union Imp. Co. v. Comm. 69 Pa. St. 140; Comm. v. Fayette Co. B.
B. 55 Pa. St. 452; Iron City Bank v. Pittsburg, 37 Pa. St. 340; Hewitt «.
N. Y. Ac. B. E. Co. 12 Blatchf . 467.
Exemption from taxation.— If the charter exempts
the capital stock it extends to additional capital permitted
under subsequent acts.i If the stock is exempted the
State cannot levy a tax on the property held by the cor-
poration; 2 but if the charter makes a distinction between
the capital stock and the property, a tax may be laid on
the property though the stock is exempt; s but it does not
exonerate the dividends of shareholders. < So, a contract
exempting the franchise will not exempt stockholders.^
A provision exempting a bank from further taxation ex-
empts the stockholders ;<^ so, if a corporation is exempt
from taxation the State cannot tax the shares of the stock-
holders ; 7 and if shares are exempted, an act imposing a
tax on franchise or property is invalid. ^ The mere reser-
vation of a sum to be paid annually does not contain an
implied contract that no further tax shall be imposed.®
If the charter stipulates for an annual payment in lieu of
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Art. I, § 10 LIMITATION OF POWERS. 166
all taxation, the amount cannot be subsequently in-
creased.i<* The legislature may prescribe a bonus to be
paid in commutation of all taxes on its corporate stock
and property. 1^ A provision fixing the mode oi assessment
does not preclude the adoption or another mode; ^ but a
limitation to a particular mode includes a negative of any
other mode. 18 A corporation may yield a part of the ex-
emption, and accept other terms in lieu thereof; ^* but if
a charter is renewed without renewal of the exemption,
the power of taxation is revived. ^^ Where the tax is to
be levied on the happening of some future contingency
no tax can be leaned prior to that time.w A law offering
a bounty for manufacturing and freed from taxation is
not a contract. '^^
1 state V. N. &c. R. R. Co. 30 Conn. 290.
2 New Haven r. City Bank, 31 Conn. 106; Ordinary v. Centr. B. R.
Co. 40 Ga. 646; Tax Cases, 12 Gill & J. 117.
3 St. Louis &c. R. R. Co. v. Loften, 30 Ark. 693
4 State V. Petway, 2 Jones Eq. 396.
5 Gordon v. Appeal Tax Ct. 3 How. 133; 6 Gill, 231.
6 Gordon v. Appeal Tax Ct. 3 How. 133; 5 Gill, 231.
7 State V. Branin, 23 N. J. 434; State v. Powers, 24 N. J. 400; Stat^ v.
Bentley, 23 N. J. 632.
8 Mayor v. Bait. &c. R. R. Co. 6 Gill, 288: Nichols v. N. H. & N. C5o. 42
Conn. 1U3; Hannibal &c. R. R. Co. v. CliackleU, 30 Mo. 550; State v. Han-
nibal &c. R. R. Co. 37 Mp. 265.
9 Delaware R. R. Tax, 18 Wall. 206; MInot r. P. W. &c. R. R. Co. 2
Abb. U. S. 323; Union Bank v. State, 9 Yerg. 490.
11 Draughdrill v. Ala. &c. T. Co. 31 Ala. 91.
12 Bailey v. Maguire, 22 Wall. 216; State v. Hannibal Ac. R. R. CJo. 60
Ho. 143.
13 Raleigh &c. R. R. Co. v. Reid, 13 Wall. 269; 64 N. C. 155.
14 State V. Commissioners, 37 N. J. 240.
15 State V. Bank, 2 Houst. 99.
16 McGavlsk v. State, 34 N. J. 509.
17 Salt Co. V. East Saginaw, 13 WaU. 873.
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167 LIMITATION OF POWEBS. Art. I, § 10
Banking corporationB.— The State charter to a hank
constitutes a contract it is not at liberty to break, ^ and a
provision in the charter cannot be abrogated by subse-
ciuent legislation.2 So, a provision that its bills shall be
receivable for taxes is an obligation which cannot be im-
paired.^ So, the repeal of a provision that its notes shall
1x3 received for all debts due the State cannot affect notes
in circulation at the time.* Where a statute provides
that such bills are payable in gold or silver coin, a law
providing that depreciated bills shall not be received is
valid.^ A general statute making the suspension of
specie payment by a bank a cause of forfeiture, when not
80 stated in the charter, is void.<^ If a State creates a
bank of which it is the sole stockholder, it cannot with-
draw the fund or any part without impairing the obliga-
tion to creditors. 7 So, a statute which withdraws the
assets of a bank from the operation of all legal process,
ia void.^ A statute appropriating the assets of a bank
operates as an assignment, and cannot be repealed by a
subsequent act.^ A law declaring notes of a State bank
void is unconstitutional.^® The general right to prescribe
the issue of notes cannot be construed to be relinquished,
unless the intention is clearly expressed.i^ A statute
prohibiting a bank from transferring notes by indorse-
ment is valid, unless the power to do so is expressly
granted in the charter. ^'^ It notes are made payable at a
certain place, a statute requiring it to receive them in
payment of notes of other banks is void.^^ A statute
which permits bank-notes to be tendered for a debt due
the bank, but assigned before its passage, is unconstitn-
tioiial.l4 A banking corporation, the stock of which is
owned by private individuals, is a private corporation,^
but a State cannot incorporate individuals ana authorize
them to coin money. 16 A statute may authorize debtors
of the bank to pay in the notes and certiiicates of the
bank, 17 or may provide that a bank shall redeem several
bills presented together as a single obligation, is or may
impose a penalty for refusal to pay bank-bills, unless a
clause in the charter prohibits sucn law.i9 The State may
assess the stockholders of banks which have gone into
Uquidation.20 A State allowing a judge and commissioner
to reduce the account in a savings bank, affects the rem-
edy and is valid.2i Where a bank charter provided for
the receipt of bank-notes for taxes, an amendment to
the Constitution cannot impair the obligation of the con-
1 Woodrofl V. TrapuAll, 10 How. 190; 8 Ark. 236; Paup ». Drew, lU
How. 222; 9 Ark. 205.
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Art. I, § 10 LIMITATION OF POWERS. 168
2 Ftirman v, Nichol, 8 Wall. 44; Barings v. Dabney* 19 WalL 1
3 Fnnxian v. Nichol, 8 Wall. 44.
4 Woodruff V. Trapnall, 10 How. 190; 8 Ark. 236; Paup ». Drew, 10
How. 222; 9 Ark. 205; Trigg v. Drew, 10 How. 224.
6 GraniteyiUe Manaf. Go. v. Boper, 15 Rich. 138.
6 State V. Tombecbee Bank, 2 Stew. 30.
7 Gnrran v. Arkansas, 15 How. 304; 12 Ark. 321.
8 State V. Bank, 1 Rich. N. S. 63.
9 Barings V. Dabney, 19 Wall. 1
10 Keith V. Clark. 97 U. S. 451.
11 Ohio T. Go. V. Debolt, 16 How. 416; 1 Ohio St. 563; State v. Mat-
thews, 3 Jones (N. G.) 451.
12 Payne v. Baldwin, 11 Miss. 661 ; Mclntyre v. Ingraham, 35 Miss. 25.
13 Bank V. Bank of Gape Fear, 13 Ired. 75.
14 Dundas v. Bowler, 3 McLean, 397.
15 Fiqua Bank v. Knoop, 16 How. 369; Miners' Bank v. U. S. 1 Iowa,
553; Hazen v. Union Bank, 1 Sneed, 115.
16 Briscoe v. Bank of Kentucky, 11 Peters, 257 ; 7 J. J. Marsh. 349.
17 Bank of Md. v. Buff, 7 Gill & J. 448; Exchange Bank v. Tiddy, 67
N. G. 169: Bank v. Hart, 67 N. G. 264; Bank v. DoniS^, 12 Ohio, 220.
18 Beapers' Bank v. Willard, 24 Dl. 433.
19 Brown v. Penobscot Bank, 8 Mass. 445.
20 Gommonwealth v. Gochituate Bank, 3 Allen, 42.
21 Simpson v. Savings Bank, 56 N. H. 466.
22 Keith V. Glark, 97 U. S. 451
Bridges, ferries, and turnpikes.— A charter includes
the laws defining its stipulations at the time of the grant,
and a subsequent statute allowing the erection of a bridge
within the prohibited distance is void.i The construction
of a railroad bridge is not a violation of the exclusive
right to construct a bridge for carriages in common use.^
A statute cannot require a canal corporation to keep in
repair the bridges connecting the highways intersected by
the canal.^ A statute giving a right of action to those
who have been injured by the erection of a close bridge
over a navigable creek, wnen such bridge was authorized
by the charter, is void.* A grant of a i^rrv franchise is a
contract ;5 but if no consideration has been paid, the
grantee takes it subject to the power of the legislature to
regulate rates of ferriage.^ A new road, canal, or bridge,
materially diverting travel or business from an old one
established under a prior charter, is not unconstitutional,
unless the franchise is delined or made exclusive." A
franchise granting exclusive privileges is a contract ;B so
as to ferry franchise .^ If the grant of a ferry franchise
is accompanied by a reservation, the legislature may
make another grant directly to another. i<> A charter to a
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169 LTUITAIIOlf OF POWERS. Art. I, § 10
railroad does not impair a prior charter to a turnpike
company. 11 There is no implied contract of an exclusive
grant to a turnpike corporation, or that they shall be free
nrom the common liability under the power of eminent
domain. 1^ If the charter prescribes the form of the signs
and boards with rates of toll, it will prevail over a gen-
eral statute subsequently passed. ^^ X. statute conferring
the right to collect additional tolls is a grant. i* A statute
authoriziug commissioners to examine turnpike roads,
and throw open its gates if not in repair, is void;^^ "but a
statute apx)ointing commissioners with power to direct
proper repairs is valid. i<* The legislature cannot require
a turnpike company to set back its gates, located in ac-
cordance with the terms of its charter. i7
1 MicoQ V. Tallahassee Br. Co. 47 Ala. 652.
2 Bridge Prop. v. Hoboken &c. Go. 1 Wall. 116; 2 Beas. 81: McLeod
V. Savannah &c. B. B. Co. 25 6a. 445; Mohawk Br. Co. v. Bailroad Co.
6 I^e, 554; Thompson v. Bailroad Co. 3 Sandf . 625.
3 City V. Erie Canal Co. 59 Pa. St. 174. And see Meadyille v. Erie
Can. Co. 18 Pa. St. 66.
4 Bailey V. Bailroad Co. 4 Barring. 389.
5 Mills V. St. Clair Co. 8 How. 581 ; McBoberts v. Washboume, 10
Minn. 23.
6 People V. The Mayor, 32 Barb. 102; State v. Hudson, 23 N. Ji, 206;
24N. j.m
7 Charles Biv. Br. Co. v. Warren Br. 11 Peters, 420; 24 Mass. 462;
Turnpike Co. v. State, 3 Wall. 260; In re Hamilton Av. 14 Barb. 405;
Oswego Br. Co. v. Fish, 1 Barb. Ch. 547; Fall t?. Suter. 21 Cal. 237; In-
dian Canyon Boad r.'Bobinson, 13 Cal. 519; Salem T. Co. v. Lynn, 18
Conn. 451; Fitch v. Bailroad Co. 30 Conn. 38; Harrison v. Young, 9 Ga.
399; Shorter v. Smith, 9 Ga. 617: West End Co. v. Atlantic Co. 4 Ga.
191; Illinois & M. Can. Co. v. B. B. Co. 14 111. 314: Ciurtis v. Morehouse.
12 La. An. 649: Bush v. Peru Br. Co. 3 Ind. 21; Collins v. Sherman, 31
Miss. 679; Mohawk Br. Co. v. B. B. Co. 6 Paige, 554; Fort Plain Br. Co.
r. Smith, 30 N. Y. 44; Thompson v. B. B. Co. 3 Sand. Ch. 625.
8 Bridge Proprs. v. Hoboken Co. 1 Wall. 116; McBee v. Wilmington
&c. Co. 2 Jones (N. C.) 186; Enfleld T. B. ». Hartford &c. Co. 17 Conn.
40 ; Commonwealth v. New Bedf. Br. 68 Mass. 339: Mohawk Br. Co. v.
Utlca <fcc. Co. 6 Paige, 564; Thompson v. N. Y. Ac. Co. 3 Sandf. 625.
9 Conway p. Taylor. 1 Black. 603; Hartford B. Co. v. Union F. Co. 29
Conn. 210; Trust, of Newport v. Taylor, 6 J. J. Marsh, 134; Comm. v.
Bacon, 13 Bush, 212. And see Morey v. Prop, of Oxford Br. Smith
(N. H.) 91.
10 Dyer v. Tuscaloosa Br. Co. 2 Port. 296.
11 Tnmplke Co. v. Bailroad Co. 10 Gill. & J. 392.
12 Wbite Biv. T. Co. v. Vermont C. P. B. B. Co. 21 Vt. 590.
13 Nichols V. Bertram, 20 Mass. 342.
14 Derby T. Co. v. Parks, lO.Conn. 522.
15 Powell V. Sammons, 31 Ala. 552.
16 State V. Bosworth, 13 Vt. 402.
17 White's Creek T. Co. v. Davidson Co. 3 Tenn. Ch. 396.
Dksty Fed. Coif.— 1.»-
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Art. I, § JLO LIMITATION OF POWERS. 170
Railroads.— The charter to a railroad is a contract. ^ If
it provides that no other railroad shall be built within a
certain distance, the corporation cannot be disturbed in
the enjoyment of their franchise.^ Any act which essen-
tially paralyzes the franchise is void.s On the consolida-
tion of two or more corporations, the franchise eranted
to the consolidated corporation is subject to the laws in
force at the time of the consolidation.* The consolida-
tion works their individual dissolution. ^ Bailroads, being
highways, are not for all purposes private property — pos-
sessing a public character, they are subject to public
supervision. 6 A State has the right to regulate the rates
to be charged by a railroad for the transportation* of
freight or passengers, ? and this power is not affected
by a lease of the road and a i)ledge of its income.^
A law changing the tariff of freights allowed by the
charter is void.® The State may impose a penalty for
taking unlawful toll or freight ;io or may prevent an
unjust discrimination in freights. ^i Where a charter
provides for the regulation of the business, a subsequent
statute interfering with it is void.^'^ A statute may
authorize the appointment of commissioners to determ-
ine the duties and obligations of railroad companies, is
or may prohibit a railroad from constructing a track
where it will endanger safe and convenient access to a
depot, 14 but it cannot ch.i.nge the gauge of a railroad.^^
A statute may render a railroad liable for injuries caused
by sparks from its engine, ^^ or for the neglect and miscon-
duct of its employees,!^ or may require railroads to build
a depot at a certain place and stop thereat.is if a com-
missioner merely has the power to approve or disapprove
of the abandonment of a station, his consent is not a con-
tract binding on the State. ^^ A statute may regulate
railroad crossings, 20 or may require them to ring a bell or
sound a whistle at a crossing,^! or may regulate tneir speed
in a city, 22 or may require tnem to erect fences and cattle-
guards, 28 or may prohibit from carrying freight which is
regarded as detrimental to public health, morals, or safety,
and may make them liable as insurers of life and limb of
passengers; 24 but a statute requiring a railroad to keep
flagmen where there is no unusual danger is void.2fi An
act imposing restrictions on conveyance of land to rail-
roads impairs the obligation of the contract.26
1 Wilmington R. R. v. Reld, 13 Wall. 264 ; Koenlg v. O. A N. W. B. B.
Co. 3 Neb. 383.
2 Boston &c. R. R. Go. v. Salem &c. R. R. Go. 68 Mass. 1.
3 Sloan V. Mo. Pac. R. R. Go. 2 Gent. L. J. 781 ; Philadelphia &c. B.
R. Co. V. Bowers, 4 Hoost. 606; T. W. Ac. R. R. Co. «. City, 67 Dl. 37.
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171 LIMITATION OF POWERS. Art. I, § 10
4 Bailroad Go. v. Maine, 96 U. S. 510; Atlantio &c. B. B. Go. v.
Georgia, 11 Ghlc. L. N. 215; State v. Northern Gent. B. B. Go. 44 Md. ISl.
5 SMelds V. Ohio, 95 U. S. 319.
6 Pittsburg 4c. B. B. Co. v. S. W. Pa. B. B. Co. 77 Pa. St. 178.
7 Chicago &c. B. B. Co. v. Iowa, 94 U. S. 155; Winona &c. B. B. Go.
V. Bh&kei94 U. S. 180; 19 Minn. 418; Parke v. Metrop. B. B. Go. 109
Mass. 506.
8 Chicago Ac. B. B. Go. v. Iowa, 94 U. S. 155.
9 9oan V. Missouri P. B. B. Co. 2 Gent. L. J. 781 ; Philadelphia Ac. B.
B. Co. «. Bowers. 4 Houst. 506; Hamilton v. Keith, 5 Bush, 458; Attor-
ney-General V. Ballroad Go. 35 Wla. 425. But see Moore v. Illinois
Cent. B. B. Co. 4 Chic. L. N. 123.
10 Camden & A. B. B. Co. v. Briggs, 22 N. J. 623; Norrls v. Andro-
scoggin B. B. Co. 39 Me. 273.
11 Chicago Ac. B. B. Co. v. People, 67 111. 11; Vincent v. Chicago 4c.
B. B. Go.^ ni. 33; People v. Chicago 4c. B. B. Go. 55 m. Ill; ^cago
4c B. B. Co. V. People, 66 Dl. 365.
12 State V. Noyes, 47 Me. 189.
13 Portland B. B. Go. v. BaUway Co. 46 Me. 69.
14 P. 4c. B. B. Co. V. B. 4c. B. B. Co. 65 Me. 122.
15 State V. Bichmond 4c. B. B. Co. 73 N. C. 527.
16 Lyman v. B. 4c. B. B. Co. 58 Mass. 288; Bodemacher o. M. 4c B.
B. Co. 41 Iowa, 297.
17 B. 4c. B. B. Co. r. State, 33 N. H. 215.
18 Ballroad Commissioners v. P. 4c. B. B. Co. 63 Me. 269.
19 State V. N. H. 4c. B. B. Co. 43 Conn. 351.
20 P. 4c. B. B. Co. V. S. W. P. B. B. Co. 77 Pa. St. 173.
21 Galena B. B. Co. v. Appleby, 28 lU. 283; Galena B. B. Co. v.
Loomls, 13 lU. 548.
22 Chicago 4c. B. B. Co. v. Haggerty, 67 111. 113.
23 Suydam v. Moore, 8 Barb. 358: Waldron v. Ballroad Co. 8 Barb.
390; New Albany 4c. B. B. Co. v. Tllton, 12 Ind. 8; Madison 4c. B. B.
Co.9.Whiteneck.8Ind.217; Ohio 4c. B. B. r. McClelland, 25 lU. 140;
Kansas P. B. B. Co. v. Mower, 16 Kans. 573; Jones v. G. 4c. B. B. Co.
leiowa, 6: Indianapolis B.B. Co. v. Kercheval, 16 Ind. 84; Nichols v.
8. 4c. B. B. Co. 43 Me. 356; Wenona 4c. B. B. Co. v. Waldron Jl Minn.
515: Gorman v. Paclflc B. B. Co. 26 Mo. 441 : Blair v. M. 4c. B. B. Co.
20 Wis. 254; Pennsylvania B. B. Co. v. Blblet, 66 Pa. 164.
24 Thorpe V. Burlington 4c. B. B. Co. 27 Yt. 140; Nelson v. Vermont
4C.B.B.C0.26 Vt.717.
25 T. 4c. B. B. Co. v. City, 67 lU. 37.
26 De Graff v. St. Paul 4c. B. B. Go. 23 Minn. 144.
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^
Art. I, § 10 LIMITATION OF POWERS. 172
Immunity from taxation.— The immunity from tax-
ation in the original charter accompanies the lands trans-
ferred by the State to a new corporation; i so, a grant of
all rights and privileges conferred by the charter of an-
other corporation includes an exemption from taxation.'^
The legislature cannot repeal an act exempting a railroad
from taxation.8 The exemption of a railroad from taxa-
tion does not exempt the lessee of the road from taxation
on profits and earnings.'* If the stock is exempt no. tax
can be levied on a branch road authorized by amendment
of the charter; 5 but ou consolidation of two coriiorations
the exemption of one will not extend to the property of
the other." A contract not to tax a railroad or its prop-
erty is broken by a levy of a tax on its gross receipts for
transportation of freight and passengers."^ A statute re-
leasing a railroad corporation from a tax lawfully imposed
by a municipal corporation impairs the obligation of the
contract. 8 Where the capital stock was forever exempt
and the road and other property exempt for a limited
time, the capital stock is taxable after that time.^
1 Tomllnson v. Branch, 15 Wall. 460; Thomas v, Scotland Co. 3 Dill.
12; Harshiiian v. Bates Co. 3 Dill. IftO; County Cominrs. v. Franklin B.
B. Co. 34 Md. I5f); First Div. R. R. v. Parcher. 14 Minn. 2.97; Wlliuiag-
ton &c. R. R. Co. V. Reid, 13 Wall. 264.
2 Humphreys v. Pegues, 16 Wall. 244. Contra, Wilson v. Gataes,3
Tenn. Ch. 5&7.
3 Humphreys w. Pegues, 16 Wall. 244. '
4 State V. Delaware «S;c. R. R. Co. 30 N. J. 473; 31 N. J. 631.
5 Atlantic «fec. R. R. Co. v. Allen, 15 Fla. 637.
6 Philadelphia &c. R. R. Co. v. State, lO How. 376 ; Tomllnson v.
Branch, 15 Wall. 460; Delaware R. R. Tax, 18 Wall. 206; EvansvlUe &c.
R. R. Co. V. Commonwealth, 9 Bush, 438.
7 Pacific R. R. Co. v. Maguire, 20 WaU. 36; 61 Mo. 142.
8 City 17. Illinois Cent. R. R. Co. 39 Iowa, 38.
9 Memphis &c. R. R. Co. v. Gaines, 3 Tenn. Ch. 604.
State authority over corporations.— The legisla-
ture has the same right of general control over corporations
that it has over natural persons, i and any privileges which
may exempt a corporation from burdens common to indi-
viduals do not flow necessarily from the charter, but must
be expressed in it, or they do not exist ;2 so, the relinquish-
ment of sovereign powers must be plain and unequivocal;
it is never to be assumed.^ The State grant of a charter
is a contract; but all contracts are made subject to the
right of eminent domain,* and the exercise of the right of
eminent domain is not a revocation of the grant ;5 so, an
act providing for the condemnation of property for street
Digitized by LaOOQlC .
173 LIMITATION OF POWERS. Art. I, § 10
purposes is not in conflict/' There is nothing in the char-
ter of a corporation which prevents the taking of its prop-
erty for puDlic nse,7 provided compensation be made.^ A
statute setting aside an inquisition for damages, and sub-
stituting an inquisition de novo, does not impair the
obligation of the charter.* A State legislature cannot,
abandon the police power, or give a vested right to its
exercise by either a corporation or an individual, i® A
corporation has no greater rights to manufacture or sell
malt liquor than an individual, ii and if a corporation
claims exemption from such powers, it must show a re-
linquishment in the charter, or that its exercise is incom-
patible with or destructive of particular rights in the char-
ter. 12 The legislature is the exclusive judge of the
propriety of interference in the use of private property
within the scope of legislative power. ^^ Every legislative
grant is made with the implied reservation that it shall
not injure others. 1*
1 Benson p. N.,Y. 10 Barb, 223; Galena *c. R. R. Co. v. Loomis, 18
ni. 548; Ohio &c. R. R. Co. v. McClelland, 25 lU. 140; N. W. Fert. Co.
V. Hyde Park, 70 111. 634; New Albany &e. R. R. Co. v. Tilton, 12 Ind. 3;
Gorman r. Pacific R. R. 26 Mo. 441; ]$urlinsrton &c. R. R. v. State, 82 N.
H. 215; State v. Matthews, 3 Jones & C. 451; Nelson v. Vermont &c. B.
B. 26 Vt. 717; Thorpe v. B. Ac. R. R. 27 Vt. 140.
2 Bank r. HamUton, 21 111. 53; Peters v. Railroad Co. 23 Mo. 107;
Thorpe v. Burlington &c. R. R. Co. 27 Yt. 140.
3 Providence Bank v. Billings, 4 Peters, 514; Phila. &c. R. R. Co. v.
State, 10 How. 376; Delaware R. R. Tax, 18 WaU. 206; State v. Mat-
thews, 3 Jones (N. C.) 451: Gordon r. Baltimore, 5 Gill. 231; Judson v.
State, Minor, 150; City v. Boatmen's &c. Co. 47 Mo. 150; State v. Dulle,
48 Mo. 282; Brewster p. Hough, 10 N. H. 138; State v. Minton, 23 N. J.
529; Bank of Pa. v. Commonwealth, 19 Pa. St. 144; GUman v. Sheboy-
gan City, 2 Black, 517.
4 West Riv. Br. Co. r. DU. 6 How. 548; 16 Vt. 446: Richmond R. R.
Co. V. Louisa R. R. Co. 13 How. 71 ; Rundle v. Del. &c. Co. 14 How.
8D; Enfield Br. Co. p. Railroad Co. 17 Conn. 454; Shorter p. Smith, 9 Ga.
517: James Riv. Co. p. Thompson, 3 Gratt. 270; Newcastle Ac. R. R. Co.
p. Peru Ac. R. R. Co. 3 Ind. 464; Boston Wat. Riv. Co. p. Raihroa4, 40
Mass. 360: Boston Ac. R. R. Co. p. Salem Ac. R. R. Co. 68 Mass. 1; Cen-
tral Br. p. Lowell, 70 Mass. 474; PIscataqua Br. v. N^. Bridge Co. 7 N.
H. 85: Barber p. Andover, 8 N. H. 3.98; Northern R. R. p. Concord R.
R. 27 N. H. 183; Crosby p. Hanover, 36 N. H. 404; Red River Br. Co. v,
ClarksviUe, 1 Sneed, 176; State v. De Lesdemier, 7 Tex. 99; Armington
p.Bamet,15Vt.745.
5 nihiots A Mich. C. Co. p. Raih'oad Co. 14 HI. 314.
6 Garrison p. N. Y. City, 21 WaU. 196.
7 Alabama Ac. R. R. Co. p. Kenney, 39 Ala. 307 ; In re Kerr, 42 Barb.
119: BeUona Com p. Case. 3 Bland, 442: Turnpike Co. p. Railroad Co. 10
6m A J. 392; Tuclcahoe C. Co. r. Railroad, 11 Leigh, 42; Boston W. P.
Co. tr. Railroad, 40 Mass. 360; Backus p. Lebanon, 11 N. H. 19; Crosby v.
Hanover, 36 N. H. 404; White Riv«r T. Co. p. Railroad Co. 21 Vt. 590.
8 Barber v. Andover, 8 N.H. 898; Pierce p. Somersworth. ION. H.
869; Armington p. Bamet, 15 Vt. 745,
Digitized by LaOOQ IC
Art. I, § 10 LDCiTATioir of powers. 174
9 Bait B. R. Co. v. Nesbit, 10 How. 396.
10 Dingman v. People. 51 ni. 277: Beer Co. v. Massachiuetts, 97 U. S.
25; FerOlizing Co. v. Hyde Park, 97 U. S. 659.
11 Beer Co. v. Massachusetts, 97 U. S. 25.
12 State V. South Pacific R. B. 24 Tex. 80.
IS Munn v. Illinois, 94 U. S. 113; 69 lU. 80.
14 Pittsburg Ac. B. R. Co. v. S. W. Pa. R. B. Co. 77 Pa. St. 178.
Amendment or alteration of charter.^ A charter
may be altered or amended with the consent of the cor-
poration, * but there must be an acceptance of the subse-
quent act.3 If an amendment is accepted by a corporate
vote as an amendment to the orig^al charter, it is not a
violation of the charter.^ The assent relates back to the
date of the law.^ An inference of assent cannot be
drawn from non-user or misuser of its franchise,^ but for
a willful misuser or non-user a corporation is subject to
dissolution.^^ Where the amendment is as to several par-
ticulars, the acceptance must be made as it is offered, or
not at all."' The cnarter of a corporation may be repealed
by an amendment accepted by the corporation, & but an
amendment is not binding without acceptance,^ unless
the power be reserved in the charter, i^- If the grant is
accepted on the terms prescribed, it becomes a compact,
bindmg on the parties.^^ A statute cannot amend a char-
ter so as to restrict the use of its property.^ Nor to give
to public use for a use entirely different and inconsistent
with the original use.^^ So, an officer of a corporation
cannot be deprived of his office by an amendment of the
charter.!* A public statute which provides how charters
may be amended is not a contract.!© A power to alter is
not ordinarily a power to repeal or a power to destroy, w
A State may modify or repeal a charter before it is ac-
cepted, and before rights have been acquired under it.^^
1 People V. Marshall, 1 Gilm. 672 ; Comm. v. Jarvis. 1 Mon. 5; Monon-
gahela Nav. Co. v. Coon, 6 Pa. St. 379: 6 Watts A S. 101 ; Ehrenzeller v.
Canal Co. 1 Bawle, 181 ; l^ustees v. Winston, 5 Stew. & P. 17.
2 Pingry v. Washburn, 1 Aik. 264; Commonwealth v. Cullen, 13 Fa.
St. 133; Allen v. McKan, 1 Sum. 276. Otherwise as to the assent of
curators and directors of an eleemosynary corporation— State v.
Adams, 44 Mo. 570.
3 Dartmouth Coll. v. Woodward, 4 Wheat. 518: Mumma v. Potomae
Go. 8 Peters, 281; Penn. Coll. Cases, 13 Wall. 214; Sbe v. Bloom, 19
Johns. 456; Joy v. Jackson Co. 11 Mich. 155; Biddle v. Locks and Canals,
7 Mass. 1^; itcLaren v. Pennington, 1 Paige, 107; Monontnhela N«v.
Co. V. Coon, 6 Pa. St. 379; Commonwealth v. Cullen, 13 Pa. St. 13S.
4 Ehrenzeller v. Canal Co. 1 Bawle, 181.
5 Begentsv. Williams, 9 Gill & J. 365.
6 Mummav. Potomac Co. 8 Peters, 281.
Digitized by LaOOQ IC
175 LIMITATION OF POWERS. Art. I, § 10
7 Marietta Ac. B. B. Co. V. EUiott, 10 Ohio St. 57.
8 Mobile B.B. Co. v. State, 29 Ala. 573; Monongahela Nav. Co. v.
Coon. 6 Pa. St. 379; 6 Watts & S. 101.
9 Sage V. Dillard, 15 B. Men. 340; Yeaton v. Bank. 21 Gratt. 593; Troy
t>. Butland &c. B. B. Co. 17 Barb. 581 ; White v. Bailroad Co. 14 Barb.
559; Pennsylvania Coll. Cas. 13 Wall. 213; Tomllnson v. Jessup, 15 Wall.
459; Mtiler v. State, 15 WaU. 478; Holyoke v. Lyman, 15 Wall. 500; Mayor
&c. V. Norwich &c. B. B. Co. 109 Mass. 103; Thornton v. Marginal F. B.
Co. 123 Mass. 32.
10 Wash. Br. Co. v. State, 18 Conn. 64; Enfield T. B. Co. v. H. &c. Co.
17 Conn. 59 ; Bronson r. Taylor, 33 Conn. 116 ; M. & £. B. B. Co. v.
Commrs. of B. B. Tax, 37 N. J. 228.
11 Crease v. Babcock, 40 Mass. 334; Iron City Bank v. Pittsburgh, 37
Pa. St. 340.
12 Comm. v. Bacon, 13 Bush, 210.
13 Jacksonville v. Jacksonville Co. 67 ni. 540.
14 Allen v. McKean, 1 Sum. 276.
15 State v. New Haven Ac. B. B. Co. 43 Conn. 351.
16 Hartford Br. Co. v. East Hartford, 16 Conn. 149.
17 Canal Co. v. B. B. Co. 4 Gill & J. 5.
Reserved power to alter or amend.— When this
power is reserved in the State constitution, or in general
laws on the subject, or in the special act of incorporation,
its exercise does not impair the contract of which it forms
a part.i If not reserved in the constitution, it is a ques-
tion whether the legislature intended it to inhere in the
charter.2 That the charter shall not be altered except by
an act of the legislature is a sufficient reservation of the
power to alter. 8 If the power is reserved in a charter, the
le^slature may repeal, alter, or modify it,4 and a creditor
01 the corporation cannot object to the repeal. ^ The legis-
lature may modify the charter by a general statute, 6 and
the alteration is binding whether the corporation assents
or not,*^ or the alteration may be made by a change in the
State constitution. 8 The power to alter or modify is not
exhausted by one alteration.^ Under this reserved power
a legislature cannot change the fundamental character of
the corporation, 10 nor take away nor intermeddle with
property rights, ii nor authorize the legislature to take the
corporation property for public use without compensa-
tion ;i2 and where there is a provision that the alteration
shall work no injustice, it is for the courts to decide
whether injustice is done.^s xhis power becomes, by
operation of law, a part of every contract or mortgage
made by the corporation ;i* but the legislature cannot
alter contracts made under the charter. ^^ If the general
Digitized by LaOOQ IC
Art. 1, § 10 LI^IITATIO?? O^ POWEBS. 176
statute contains this reservation, a charter subsequently
granted is subject to this power.i^ Where the power to
alter is reserved, the State may from time to time desig-
nate the agents or organs, and prescribe the manner in
wJiich the power shall be exercised.^' Where the power
is reserved in the Constitution, the right is not affected by
the grant of authority by the legislature to consolidate
with a foreign corporation, is
1 Penn. Coll. Cases, 13 Wnil. 214; Miller v. State, 15 WaU. 478; Holy-
oko r. Lyman, 15 Wall. 522; Commonwealth v. Fayette Co. R. R. Co. 65
Pa. 452; English r. N. H. <fe N. Co. 32 Conn. 243.
' 2 State v. Yard, 10 Chic. L. N. 90.
3 Penn. Coll. Cases, 13 Wall. 214; Houston v. Jeff. Coll. 63 Pa. St. 428;
Comm. V. Bousall, 3 Whart. (mX
4 Allen v. McKean, 1 Sum. 270: Crease v. Babcock, 40 Mass. 384; Per-
rln V. Oliver, 1 Minn. 202; Del. K. R. Co. v. Thorp, 6 Harrinff.454; Mc-
Laren V. Pennington, 1 Paifxo, 102; Monongahela Kav. Co. v. Coon, 6 Pa.
St. 379; 6 W. & S. 101; Ferguson v. Miners' & M. Bank, 3 Sneed,609;
Stephen v. Smith, 29 Vt. 160; Beer Co. v. Massachusetts, 97 U. S. 25;
Butler V. Walker, 80 111 345.
5 West Wis. R. R. Co. v. Supervisors, 93 U. S. 696; 35 Wis. 257; Read
V. Frankfort Bank, 23 Me. 318.
6 State V. Commrs. 38 N. J. 472 ; Bangor R. R. Co. r. Smith, 47 Me. 34.
7 Hyatt c. Whipple, 37 Barb. 595; Hyatt v. Esmond, 37 Barb. 601,
Mayor v. N. &c. R. R. Co. 109 Mass. 103; Attorney-General v. R. R. Co.
35 Wis. 425.
8 In re Lee's Bank, 21 N. Y. 9.
9 People V. Hills, 43 Barb. 340; Proprietors v. Haskell. 7 Me. 474;
State ». Comm. 37 N. J. 228; M. & E. R. R. Co. r. Commrs. of R. R.
Tax, 37 N. J. 22d.
10 Buffalo &c. R. R. Co. v. Dudley, 14 N. Y. 336; Troy &c. R. R. Co. v.
Kerr, 17 Barb. 581 ; White v. R. R. Co. 14 Barb. 659.
11 Allen V. McKcan, 1 Siun. 276; Comm. v. Essex Co. 79 Mass. 239.
12 Miller r. R. R. Co. 21 Barb. 513
13 Iron City Bank v. Pittsburgh, 37 Pa. St. 340.
14 Anonymous, 6 Chic. L. N. 333.
16 Bank r. McVeigh, 20 Gratt. 457; Penn. Coll. Cases, 13 WaU. 214:
PIek V. C. &c. R. R. Co. 94 U. S. 164: 6 Biss. 177; Terrett p. Taylor, 9
Crauch, 43; Penn. CoU. Cases, 13 WaJl. 190.
16 Sherman v. Smith, 1 Black, 587; Miller v. State, 15 WaU. 478; Say-
dam V. Moore, 8 Barb. 358; White v. R. R. Co. 14 Barb. 559; GrilBn v.
Ky. Ins. Co. 3 Bush, 592; Hyatt r. McMahon, 25 Barb. 467; State v. Per-
son, 32 N. J. 134; Cent. R. R. Co. v. State, 54 Ga. 501: State v. Commis-
sioners, 37 N. J. 228; Fort Plahi Br. v. Smith, 30 N. Y. 44; Iron City
Bank ». Pittsburgh, 37 Pa. St. 340.
17 In re Reciprocity Bank, 22 N. Y. 9; 17 How. Pr. 323; 29 Barb. 369.
18 Anonymous,6ChIc. L. N. 333.
Digitized by LaOOQ IC
177 lilMITATION OF POWERS. Art. I, § 10
Iizercise of reserved po'wer.— The reserved p
may be exercised to any extent to carry into effec
original purposes of the gratit,i but it should not ea
beyond the terms in which it is expressed.^ WhcB
power is reserved, the corporation may be required t<
the excess of the dividend instead of one-third of th
SrofitSjS or the stockholders may be made liable f(
ebts until the whole capital stock is paid in."* W
the power to alter is reserved in the charter, a State
prohibit an insolvent corporation from giving a pi
ence,s or it may make the stockholders personally 1
for the debts of the corporation subsequently coutrac
If the interests of the creditors demand it, the legisli
may take away the custody of the assets from the
tees, and place them in the custody of a State office
may authorise a receiver to make assessments on prer
notes instead of the directors, » but it cannot appoin
ditional trustees.^ It may repeal a clause in tne ch
exempting from taxation ; ^^ or may impose a tax diff^
from that stipulated for in the charter; ii or may m*
a provision requiring consent of a majority to levy a
tax; 12 or may diminish the right to a ferry f ranch
Where this power is reserved, a corporation authoriz
construct a dam may be required to construct a sui
fishway;!* or may impose a burden connected witl
grant; 15 or may require a railroad to erect a sts
house; 16 or may require several railroads to unite
station in a city; i"^ or may authorize another compa
lay a similar track, or to use the track of the lirst
pany on making compensation for wear and tear;
may require the raising or lowering of highways a
its tracks; 18 or direct excavations and embankmen
be made; 20 or compel the widening of a bridge ov<
excavation; 21 or require a railroad to fence its roa
or to construct cattle-guards.28
1 Fletcher v. Peck, 6 Cranch, 87; MlUer v. State, 15 Wall. 478;
oke V. Lymau, 15 WaU. 500.
2 State V. Yard, 10 Ch. L. N. 90.
3 Massachusetts Gen. Hosp. v. State M. L. Ins. Co. 70 Mass. 22:
4 Butler r. Walker, 8 Ch. L. N. 92.
6 Bobinson v. Gardiner, 18 Gratt. 509.
6 Sherman v. Smith, 1 Black, 587; In re Reciprocity Bank, 2D
389; 17 How. Pr. 323; 22 N. Y. 9; In re Lee's Bank, 21 N. Y. 9; Ba
HolUster, 28 N. Y. 112; In re Empire City Bank, 18 N. Y. 199.
7 Lothrop V. Stedman, 42 Conn. 583.
8 Hyatt V. McMahon, 25 Barh. 457.
9 Sage r. Dillard, 15 B. Mon. 340.
Digitized by LaOOQ IC
^rt. I, § 10 LIMITATION OF POWERS. 178
10 Tomllnson v. Jessap, 1ft Wall. 454; West. Wis. R. B. Co. v. Saper-
vlsors, 93 U. 8. 595; 35 W6. 257; Hewitti v. N. Y, &c. B. B. Co. 12 Blatchf.
452; C. B. & B. Co. v. State, 54 6a. 401; A. & 6. B. B. Co. r. State, 55
Ga. 312: City v. Metrop. Bank, 27 La. An. 648; Iron City Bank v. Pltts-
Durgli, 37 Pa. St. 340: State v. Miller, 31 Ibid. 521 ; State v. Mayor. 31 N.
J. 575; Commonwealth v. Fayette Co. B. B. Co. 55 Pa. St. 452; Union
Improve. Co. v. Commonwealth, 69 Pa. St. 140.
11 Iron City Bank v. Pittsburgh, 37 Pa. St. 340.
12 Bailey v. Trustees, 6 B. 1. 491.
13 Perrln V. OUver, 1 Minn. 202.
14 Holyoke v. Lyman, 15 Wall. 500; Commrs. v. Holyoke W. P. Co. 104
Mass. 446. But see Comm. v. Essex Co. 79 Mass. 239.
15 English V. New Haven Co. 32 Conn. 240.
16 Comm. v. Eastern B. B. Co. 103 Mass. 254.
17 Mayor v. N. & W. B. B. Co. 109 Mass. 103.
18 Metrop. B. B. Co. v. Highland Bailway, 118 Mass. 290.
19 City of Boxbury v. Bailroad Co. 6 Cosh. 424.
20 Pitchburg: B. B. Co. v. Grand Junction B. B. Co. 86 Mass. 196;
Albany B. B. Co. v. Brownell, 24 N. Y. 345.
21 English V. New Haven Co. 32 Conn. 240.
22 Staats v. Hudson Biv. B. B. Co. 3 Keyes, 196.
23 Bulkley v. N. Y. &c. B. B. Co. 27 Conn. 479.
Po'wer to repeal— The reservation of the power of
revocation is valid.i The power to repeal does not confer
the power to destroy the executory contracts of the cor-
poration.2 If the power to repeal depends on the abuse
or misuse of the privileges, it is not necessary that such
abuse or misuse should be judicially ascertained. ^ An
act of Incorporation may be repealed by implication.'^ If
the power to repeal is reserved by one constitution, it can-
not be affected by the subsequent adoption of another.^
Under the reserved power to repeal, the State may regu-
late tolls or rates of transportation of persons or property .6
A State may repeal or alter a charter of a corporation
where it is the sole contributor to the fund which sup-
ports it.''
1 McLaren V.Pennington, 1 Paige, 102; Crease v. Babcock, 40 Mass. 334.
2 Curran v. State, 15 How. 304 ; 12 Ark. 321.
3 Crease v. Babcock, 40 Mass. 334; Miners' Bank v. IT. S. 1 Iowa, 553;
Erie &c. B. B. Co. v. Casey, 26 Pa. St. 287. But see Mayor v. Pitts-
burgh &c. B. B. Co. 1 Abb. U. S. 9; Flint &c. v. Woodhull, 25 Mich. 99.
4 Union B. B. Co. v. East Tenn. B. B. Co. 14 Ga. 327.
5 State r. Northern Centr. B. B. Co. 44 Md. 131.
6 Peik V. Chicago &c.B. B. Co. 94 U. S. 164: 6 Blss. 177: Parker v.
MetropoUtan B. B. Co. 109 Mass. 506; Plank Boad Co. v. Reynolds, 3
Wis. 287; Attorney-General r. R. B. Co. 35 Wis. 425; Hinckley r. Chi-
cago &c. B. B. 38 Wis. 194; State v. Stone, 37 Wis. 204; Shields v. State,
26 Ohio. St. 86; Anonymous, 6 Ch. L. N. 333.
Digitized by LaOOQ IC
179 LIMITATION OP POWBBS. Art. I, § 10
7 Camm v. Arkansas, 15 How. 304; 12 Ark. 321; Dart v. Houston, 22
Ga. 606. Winston, 316; Trustees v. Stew. & P. 17; Bass v. Fontleroy, 11
Texas, 698; Mobile School Com. v. Putnam, 44 Ala. 406.
Municipal corporations.— The charter of a public
corporation created for the purposes of government can-
not be considered a contract,^ as the grant of the fran-
chise may at any time be resumed. 2 A power to alter
and change public corporations and to adapt them to the
purposes intended is implied.^ Transactions between the
lejgislature and municipal corporations are in the nature
ot legislation rather than of compact.* A statute may
take part of the territory of one municipal corporation
and give it to another.*' or extend the limits of a corpora-
tion without consent of the citizens of the annexed land.<^
But a law which repeals an act passed on the division of
a township, requiring each town to bear its proportionate
expenses of paupers, is unconstitutional."^ The power to
divide the property is incident to the power to divide the
territory. 8 The legislature may unite and divide town-
ships and their school funds, ^ but it cannot divert the
fund from a land grant to a township, though it may abol-
ish the township. iO A statute giving a municipal corpo-
ration the right to purchase property of a private corpora-
tion may be repealed or modified at pleasure ;ii so, it the
legislature gives the revenues accruing from a private
corporation, it may alter or repeal the law, and appropri-
ate such revenues to other purposes ;i2 ^^t if the legisla-
ture grant bonds to a municipal corporation, a subsequent
statute vesting rights to the bonds m others is void;^^ go,
the legislature cannot divest a municipal corporation of
its private property without consent of its inhabitants. ^^
H a municipal corporation is made trustee of an estate,
its rights and title are subject to be defeated by the abol-
ishment of its existence. ^^
1 Bradford v. Gary, 5 Me. 339 ; Marietta v. Fearing, 4 Ohio, 427 ; Gov-
ernor v. Grldley, Walk. 328: Peoflev. Morris, 13 Wend. 325; Dartmouth
ColL V. Woodward. 4 Wheat. 6W ; ^^ast Hartford v. Hartford Br. 10 How.
511; People v. Plnkney, 32 N. Y. 377.
2 Trustees V. Tatman, 13 lU. 27.
8 State V. Ballroad, 3 How. 534 ; 12 Gill & J. 399; Asplnwall v. Com-
missioners. 24 How. 364: Bridi^eport v. Hubbell, 5 Conn. 237 ; Bush v.
Shipman, 5 lU. 186: Mills v. Williams, 11 Ired. 658; GatzweiUer v. Peo-
ple, 14 m. 142; North Yarmouth v. Skillings. 45 Me. 133; Mayor v. State,
15 Md. 376; Tnistees v. Aberdeen, 21 Miss. 645: Bristol v. New Chester,
3 N. H. 524; Paterson v. Society, 24 N. J. 385; City v. Russell, 9 Mo. 507;
People V. Morris, 13 Wend. 325.
4 Hartford v. Hartford Br. Co. 10 How. 511; 16 Conn. 149: Trustees
«. Tatman, 13 HI. 27; Reynolds v. Baldwin, 1 La. An. 162; Police Jury v.
Sbreveport, 5 La. An. 661 ; Layton v. N. 0. 12 La. An. 515.
5 Wade V. Richmond, 18 Gratt. 583.
Digitized by LaOOQ IC
Art. I, § 10 LIMITATIOK OF POWERS. . 180
6 Morford v, Unger, 8 Iowa, 82; Manly v. Raleigh, 4 Jones Eq. S70.
7 Bowdolnliam r. Bichmond, 6 Mc. 112.
8 Bichmond v. Lawrence, 12 111. 1 ; North Yarmouth v. SkllUngs* 45
Mc. 133; Bristol v. New Chester, 3 N. H. 624.
9 Greenleaf v. Township, 22 111. 236.
10 State V. Springfield, 6 Ind. 83 ; Morton v. Granada Acad. 16 Miss.
773.
11 Crescent City G. Co. v. New Orleans G. Co. 27 La. An. 138.
12 Police Jury V. Shreveport, 6 La. An. 661; Marks v. Donaldson, 24
La. An. 242.
13 Spauldiiig v. Andover, 54 N. H. 38.
14 Grogan v. San Francisco, 18 Cal. 590; Milwaukee v. Milwaukee, 12
Wis. 93.
15 Bass V. Fontleroy, 11 Tex. 698; Montpelier v. East Montpelier, 29
Subscription to corporation stock.— In the ab-
sence of a constitutional prohibition, the legislature may
authorize municipal corporations to subscribe to railroad,^
and an act authorizing subscription to corporation stock
and a submission of the question to the people is consti<
tutionali'-^ but the legislature cannot render a void election
and subscription to railroad stock valid.^ Under the new
constitution, municipal corporations are inhibited from
subscribing to railroad stock;* but the inhibition is pros-
pective only, and does not repeal statutes in force at the
time of its adoption. ^ So, where the vote on a subscription
to corporate stock was had, and the subscription made
prior to the adoption of the new constitution, the old con-
stitution must govern.^ Art. 12, Sec. 2, of the constitution
of Nebraska is a restriction on legislative discretion, and
fixes the boundary beyond which the legislatm'e cannot go,
but within which it is supreme.^ An act authorizing a mu-
nicipal corporation to subscribe to the capital stock of a
railroad corporation is not a contract.* The legislature
may prohibit a municipal corporation from subscribing to
the stock of a private corpori^tion,^ or may repeal an
amendment to the charter alloij^ng such subscription, lo
or may authorize a <;hange in the mode of paying such
subscription, 11 or may confirm a subscription not made in
pursuance of the power conferred, i^ or may provide for
the issue of the stock to taxpayers in proportion to their
taxes, 1^ or may provide that the filing of the affidavit of
consent of taxpayers shall be conclusive evidence of such
assent. I'* A vote of the people authorizing such subscrip-
tion does not form a contract until the subscription is
actually made.i^ Bonds issued to railroad companies are
ever after valid and binding on the body issuing them, is
Digitized by LaOOQ IC
181 UHITATIOK OF POWERS. Alt. I, § 10
1 San Antonio v. Jones, 28 Tez. 19.
2 Hill V. Cknnm. of Forsythe, 67 N. C. 887.
3 Marshall v. Silllman, 61 ni. 218; Wiley v. SflUman, 62 lU. 170.
4 Hetfield v. Fort Edward. 70 N. Y. 28; Horton v. Town of Thomp-
son, 71 N. Y. 513; People v. Dapuyt, 71 lU. 651.
5 Indiana Co. v. Agricultural Society, 85 Pa. St. 350.
6 Decker v. Hughes, 63 111.33. And see Masonv. Shawneetown»77
111.533.
7 Belneman v. C. G. & B. H. B. R. 7 Neb. 310.
8 List V. Wheeling, 7 West Va. 501.
9 Aspinwall v. Commissioners, 23 How. 364.
10 Covington &c. B. B. Co. v. Kenton, 12 B. Mon. 144.
11 Louisville &c. B. B. Co. v. Davidson, 1 Sneed, 637; Hunsaker 0.
Borden, 5 Cal. 288.
12 City V. Bailroad Co. 15 Conn. 475; Bass t>. Mayor, 38 Ga. 876; Mo-
Hillen V. Boyles, 6 Iowa, 304; Hannibal &c. B. B. Co. v. Marlon. 36
Mo. 294.
13 Commissioners v. Lucas, 93 U. S. 108.
14 People r. MitcheU, 45 Barb. 208.
15 List r. Wheeling, 7 West Va. 501.
16 Lansing v. Muscatine Co. 2 Abb. U. S. 59; Lee Co. v, Rogers, 7
Wall. 181. And see Butz v. City of Muscatine, 8 Wall. 585.
Authority of legislature.— It may confirm the elec-
tion of officers made before act of incorporation, i or may
remove an officer for refusal to take oath of allegiance,^
or may require payment for services of an officer rendered
under a prior act, wbich required such services to be paid
for by other persons. 8 The legislature may alter the char-
ter so as to change the person on whom service of process
must be made,* or may withdraw the power to grant
licenses,^ or may change the mode and time of payment
of a county debt,<^ or may regulate the mode of selection
and removal of a county seat," or may increase the num-
ber of directors which a municipal corporation is entitled
to.8 Where a municipal corporation has condemned land
as a highway, and paid for it, a State cannot diminish tho
width of the highway and give the land back to tho
owner.o A statute to be accepted by a municipal cor-
poration and a private corporation may be a contract ;io
but a statute taking from the board of supervisors tho
power to make a contract, and conferring that power on
another, is not a contract.^^ A charter exempting corpo-
ration stock from taxation, except for State purposes^ is
binding on a municipal corporation.^- A statute allowing
a municipal corporation to set-off a claim for benefits
against damages, is valid.^s
Dksty Fbd. Cos.— lo.
Digitized by LaOOQ IC
Art. I, § 10 LIBOTATIOir OF F0WEB8. 1^2
1 State V. Kline, 23 Ark. 587.
2 State r. Adams, 44 Mo. 57(K
3 Sonthworth v. City, 24 La. An. 312^
4 Perkins v. Watertown, 5 BIss. 320; 5 Cb. L. N. 472.
5 Gatzweiller v. People, 14 ni. 142; Morris v. People, 13 Wend. 825.
6 Hunsaker v. Borden, 5 Cal. 288.
7 Moses V. Kearney, 31 Ark. 261; Elwell v. Tacker, 1 Blackf. 885;
Armstrong v. Commissioners, 4 Blackf. 208; Hamrick v. House. 17 Qt^.
56; Adams V. Logan, 11 lU. 336; Harris v. Bhaw, 13 lU. 456; State v.
Jones, 1 Ired. 414; Newton v. Commissioners, 26 Ohio St. 618. But see
State V. Perry Co. 5 Ohio St. 497.
8 Miller r. State, 15 WaU. 478; People v. Hills, 46 Barb. 340.
People V. Commissioners, 47 N. Y. 501 ; 53 Barb. 70.
10 Central Bridge v. Ldwell, 8 Mass. 474.
11 Pott V. Sheboyan Co. 25 Wis. 506.
12 State Bank v. Madison, 3 Ind. 43; Bank v. New Albany, II InO. 19».
13 Baldwin v. Newark, 9 Vroom, 158; Loweree r. Newark, Ibid. 151.
Municipal contxacts.— Where the State authorises
a municipal corporation to contract and to exercise the
power of local taxation to the extent necessary to meet
its engagements, the power given cannot be withdrawn
until the contract is satisfied.^ A State cannot release a
municipal corporation from its contracts without the con-
sent of the other party ; 2 nor require it to rescind a con-
tract for the sale of land made by it;^ nor impair a
contract for street work;* nor can a municipal corpora-
tion revoke a donation actually made or impose new
terms or duties on the donees.^ If a municipal corjwra-
tion may legally purchase property of a private corpora-
tion, a subsequent statute cannot interfere.^* A municipal
corporation may make such contracts as are allowed oy
the act of incorporation, but it cannot abridge its legisla-
tive power to Dind its legislative capacity."? When it
engages in things not public in their nature its acts bind
them as much as if it were a natural person.^ The power
conferred to raise money by taxation is a political power,
and its application is within the control of the legislature.^
A State cannot authorize a municipal corporation to impose
a tax which the State itself has no right to* levy .^o If a mu-
nicipal corporation sells lots, the use of the streets passes
as appurtenant, and it cannot afterward alter or defeat
the dedication; i^ the compliance with the conditions of a
grant is a contract. 12 A municipal corporation may waive
a forfeiture. 18 An ordinance requiring a license fee after
the granting of the right to run street-cars is void.^* The
repeal of an ordinance requiring a bond from an auction-
eer cannot destroy or affect any right acquired under the
Digitized by LaOOQ IC
183 LIMITATION OF POWERS. Art. I, § 10
ordinance.15 The legislature cannot revoke a municipal
charter so as to destroy its lawful contracts, or impair
their obligation. ^^ ^n ordinance of a city council impos-
ing a license on an insurance company authorized to
transact business by State laws is not a violation of the
obligation of contracts.i7
1 Voa Hoffman v. Qulncy, 4 Wall. 535; People v. Bell, 10 Cal. 570;
Dominic v. Sayre, 3 Sand. 655; Lansing v. Co. 1 35m. 522; 2 Abb. U. S. 83.
2 Davenport Co. v. Davenport, 13 Iowa, 220; People v. FisbkiirP. £L
Co. 27 Barb. 445.
3 Butler ». Chariton, 13 Mo. 112.
4 Goodale v. Fennell, 27 Ohio St. 426.
5 Louisville v. University,' 15 B. Mon. 642.
6 Sala V. N. 0. 2 WooUs, 188.
7 Gozzler v. Georgetown, 6 Wheat. 593; Presbjrterian Church v. N.
Y. 5 Cowen, 538; Coates v. N. T. 7 Cowen, 585.
8 West. Sav. Fund v. Philadelphia, 31 Pa. St. 175, 185.
9 People f. Power, 25 111. 187.
10 O'Donnell v. Bailey. 24 Miss. 386; Camden & A. R. E. Co. v. Com-
missioners, 18 N. J. 71 ; Camden & A. R. R. Co. v. Hillegas, Ibid. 11.
11 Breed v. Cunningham, 2 Cal. 361.
12 Brooklyn C. R. R. Co. v. Brooklyn Clt. R. R. R. Co. 32 Barb. 358.
13 State r. Raihroad Co. 3 How. 534; 12 Gill «fc J. 309; Coles v. Mac>
Ison, Breese, 115.
14 Mayor v. Second Av. B. R. Co. 34 Barb. 41 ; In re Peters, N. Y. EL
B. R. 70 N. Y. 327.
15 McMeclian v. Mayor, 2 Har. & J. 41.
16 Bleakey v. Williams, 20 Pitts. L. J. 66.
17 Home Ins. Co. v. City Council, 93 U. S. 115; Osborne v. Mobile, 16
Wan. 482.
Municipal liabilities.— An act of the State legisla-
ture which prohibits from levying taxes to pay a judg-
ment is void if it deprives the creditor of every means for
the collection of his debt.i A statute providing another
and different mode of payment of a warrant for coun^'
indebtedness than that provided in the contract, is void; -
so, requiring the holders of a county warrant bearing in-
terest to surrender them, and accept a bond bearing less
interest, is void.^ If a corporation obtain a loan by plac-
ing certain property in the hands of trustees as security,
it cannot subsequently make a change in the selection of
trustees,* A statute exempting property of a municixial
corporation from forced sale on execution is valid, if no
prior statute has authorized a levy thereon; 6 so, a stat-
ute providing a redemption fund to meet indebtedness
may provide that preference be given to the proposal that
offers the largest amount of indebtedness for the least
Digitized by LaOOQ IC
Art. I, § 10 LIMITATIOX OF POWERS. 184
amormt of money. ^ A statute makiDg one zxranicipal
corporation liable instead of another is valid. ^
1 Soutter V. Madison, 15 Wis. 30.
2 Bose V. EstadJllo, 39 Cal. 270.
3 Brewer v. Otoe Co. 1 Neb. 373.
4 West. Sav. Fund v. Philadelphia, 31 Pa. St. 175, 185.
5 Gllman v. Contra Costa Co. 8 CaL 52.
G Yocmgso. Hall,9Nev. 212. But see Bleakley v. WilUams, 20~Pltts.
L. J. 66.
7 Bader v. S. R.Dist. 6 Vroom. 273.
Municipal bonds.— If a statute authorizing a munic-
ipal corporation to issue bonds provides for a tax to pay
the same, it is a contract, i and a subsequent act cannot
destroy the corporation.^ If a fund is pledged for the
payment of municipal bonds a subsequent statute cannot
authorize its diversion so as to impair the security of the
bond-holders. 8 .An act providing for the redemption of
the bonds at less than par, and authorizing a loan of the
fund if no bonds are tendered for redemption, is void.^
A statute authorizing a municipal corporation to issue
bonds does not impair the obligation of a grant of land to
individual citizens from the State.^ If a statute author-
izing condemnation of land for a park provides that the
bonds issued shall be a lien thereon, no subsequent act
can provide for the sale of the land free from the lien,
although the proceeds are to form a sinking fund for the
use of the bond-holders.^ An act passed prohibiting the
issue of bonds for any purpose but the one specified is
not subject to repeal or amendment.? The legislature
may validate municipal bonds illegally issued. ^ A stat-
ute cannot compel a party to surrender the evidence of
indebtedness and take another in its place.^
1 Maenhut v. N. 0. 2 Woods, 108; Banger v. N. 0. 2 Woods, 128.
2 Milner v. Pensacola, 2 Woods, 632.
3 People V. Woods, 7 Cal. 579; People v. Supervisors, 12 Cad. 300;
People V. Bond, 10 Cal. 563; People v. Tllllnghast, 10 Cal. 584; English v.
Supervisors, 19 Cal. 172: Board v. Fowler. 19^Cal. 11; Trustees v. Bailey,
10 Fla. 112; West. Sav. Fund v. Philadelphia, 31 Pa. St. 175, 185.
4 Goldsmith v. Brown, 5 Or. 418.
6 McCoy V. Washington Co. 3 WaU. Jr. 381 ; 3 Phila. 290.
6 Brooklyn Park v. Armstrong, 45 N. Y. 234.
7 Smith ».Appleton, 19 Wis. 488.
8 Kuukle V. Franklin, 13 MUm. 127; Comm. v. Folsom, 13 Minn. 219.
9 People V. Morse, 43 Cal. 535; Bose v. Estudillo. 39 CaL 270.
Digitized by LaOOQ IC
185 I^IMETATION OF POWEBS. Art; I, § 10
Police po^jwers.—lt is the province of the legislature
to determine the exigency calling for the exercise of
police powers, and of the courts to decide the proper sub-
jects or its exercise,! and it cannot by any contract diyest
Itself of this power,2 nor of its discretion in its exercise.^
The police powers comprehend all those general laws of
internal regulation necessary to secure peace, good order,
health, and the comfort of society,* private interests being
subservient to the general Interests of the community.^
The legislature may forbid an individual from undertaJt-
ing a dangerous employment, except at his own risk,® or
it may prohibit a hazardous or pernicious business, al-
though it affects prior contracts.*^ So, it may regulate tibe
sale of naphtha or inflammable oils.^ A subsequent stat-
ute may prohibit the transportation of dead animals under
a charter allowing their use as fertilizers.^ So, a statute
prohibiting a lottery is valid, though the charter gave a
right to establish one.^<) A State legislature may pass
laws regulating the observance of the Sabbath, ^i or may
give a remedy against nuisances.i^ Every citizen holds
his land subservient to such police regulation as the legis-
lature in its wisdom may enact for the general welfare.^
The States may regulate the carrying on of business
within its limits, i* So, State laws may impose reasonable
police regulations for the protection of markets against
the sale of commodities unht for commerce, ^^ or may reg-
ulate the sale of any commodity the use of which would
be detrimental to the morals of the people.^® The legis-
lature rxmy regulate the sale of spirituous or malt liquors ;!7
or prohibit their sale if it does not interfere with vested
rights; IS or impair the obligations of the charter created
for the purpose of their manufacture.i^ So, a State may
t-ax liquor-dealers,2o or may license the sale of liquors,
although a charter contains a prohibitory clause.^^ It
may establish reasonable regulations for the oi)eration of
mines,'''^ and under the police power may require qualifi-
cations for professional graduates.^^ When applied to
corporations the police power is subject to constitutional
limitations, and it cannot conflict with the charter; 2* but
provisions for penalties and forfeitures in a charter are
not mere matters of contract.26 The legislature may au-
thorize cities and towns to prohibit the erection of wooden
buildings as a protection of i>erson and property against
fire.26 Under the police power the legislature may au-
thorize a railroad company to lay its tracks in the streets
of a city .2" An ordinance regulating the transportation
of heavy merchandise in a city is valid.^s Congress can-
not legislate on the internal police of a State. 20
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWERS. 186
1 Lake View v. Boso Hill Cemetery, 70 HI. 191 ; Daniels v. Hilgard. 77
2 Beer Co. r. Massachusetts, 97 U. S. 25.
3 Boyd r. Alabama, £4 U. S. G45 ; Beer Co. v. Massachiuetts, 97 U.
8.83.
4 Ex parte Shrader, 33 Cal. 279; Philadelphia &c. R. R. Co. v. Bow-
ers, 4 Houst. 506; Beer Co. v. Massachusetts, 97 U. S. 25.
5 Slaughter-Houso Oases, 16 Wall. 62; Comm. v. Alger, 7 Cush. 63.
6 KIrhy v. Pemisylvania R. R. Co. 76 Pa. St. 506.
7 People V. Hawley, 3 Mich. 330.
8 U.S.r.Dewitt,9Wall.41.
9 Fertilizing Co. v. Hyde Park, 70 HI. 634; 97 U. S. 669.
10 Moore V. StatQ, 43 Miss. 147.
U Bohl V. State, 3 Tex. Ct. App. 683.
12 FertilizinflT Co. v. Hyde Pork, 97 U. S. 669 ; 70 111. 634 ; Brady v.
Weeks, not yet reported.
18 Brown v. Keener, 74 N. C. 714; Pool v. Trexler, 76 r)ld. 237.
14 Hlgglns V. Rinker, 47 Tex. 381.
15 State V. Fosdick, 21 La. An. 256; N. H. Ac. T. B. Co. v. Bunndl,4
Conn. 59; FertUizlng Co. r. Hyde Park, 97 U. S. 669.
16 State V. Gumey, 37 Me. 156.
17 Higglnsv. Rinker, 47 Tex. 393.
18 Bertholf v. O'ReillT, 15 Am. Law Reg. N. S. 119; Metrop. Bd. of
Excise r. Barrle, 34 N. Y. 657; Beer Go. v. Massachusetts, fnXJ. S.2S;
Bntier v. Walker, 80 HI. 345; Comm. v. Intox. Liq. 115 Mass. 153.
D Commonwealth v. Intox. liq. 115 Mass. 153.
20 Sinclair v. State, 69 N. C.47.
21 Dingman V. People, 51 HI. 277.
22 Daniels r. Hilgard, 77 HI. 640 ; Dingman v. People, 51 111. 277.
23 Regents V. Williams, 9 Gill & J. 365; State v. Heyward, 3 Rich. 389;
Logan V. State, 5 Tex. Ct. App. 306.
24 Lake View «. Rose Hill Cemetery, 70 HI. 191 ; State v. Fosdick, 21 La.
An. 256.
25 State V. RaUroad Co. 3 How. 534; 12 Gin & J. 899.
26 Salem v. Maynes, 123 Mass. 372.
2T Perry v. N. O. R. R. Co. 55 Ala. 613.
28 People V. James, 16 Hun. 426.
29 Gibbons v. Ogden, 9 Wheat. 208; U. S. v. De Witt, 9 WalL 41;
Slaoghter.House Cases, 16 Wall. 36; Raihroad Co. v. Fuller, 17 WalL 560.
Digitized by LaOOQ IC
ISf liOciTATioir OF POWERS. Art. I, § 10
^yo State shall, toitkota the consent of the Congress, lay
any imposts or duties on imports or exports, except what Tnay
he absolutely necessary for executinf/ its inspection laws; and
tlie net produce of all duties and imposts, laid by any State
on imports or exports, shcdl be for the use of the Treasury of
the United States ; and all such laws shall be subject to the
revision and control of the Congress.
Imports refer only to floods imported from a foreign
country.l An "impost" is a custom, or tax, levied on
articles brought into the country. It is not merely a duty
on the act of importation, but a duty on the thing im-
ported.2 The prohibition is an exception on the power of
the State to levy taxes.* The object of the prohibition is
to protect both vessel and cargo from State taxation while
in transitu, and this prohibition cannot be evaded and
the same result effected by calling it a tax on passengers
or on the master.^ The prohibition is general, and reaches
a tax on the sale of the article imported and on the occu-
pation of the importer. 6 By payment of duty, the im-
porter purchases the right to dispose of his goods as well
as to bring them into the country.** While the import
remains the property of the importer, in the original form
or package, a tax on it is a duty on imports.'' A tax on a
bill of lading of foreign articles is a tax on imports, and
void;S so, a tax on passengers is void.^ A stamp-tax on
a foreign bill of exchange drawn in the State is not an
impost or tax on exports ;^® but a stamp-tax required on
the exi)ort of gold dust is an export tax.n A State law
imposing a transit duty on foreign corporations for per-
sons or goods transported in the St>ate is not a tax on
imports or exports," nor a provision in a railroad charter
that all tonnage carried shall be subject to a toll, or duty,
per mile ;^8 so, a tax on the gross receipts of an express
company engaged in carrying goods between States is
valia.14 The payment of duties includes the authority to
sell Without the necessity of a State license ; so, a State
law requiring importers to take out a license to sell im-
ported goods is an indirect tax on imports.i^ A tax on
sales oi inaported merchandise in original packages by
brokers and auctioneers is unconstitutional;^^ but a tax
on the gross sales of a purchaser from the importer is not
a tax on imports, i"* A tax on sales is a tax on the pro-
ceeds, and not on the imports. ^^ Requiring a license for
non-resident tradeis to vend foreign merchandise is not a
tax on imports or exports, ^^ nor is a provision requiring
hawkers and peddlers to take out a license. 2<> A State may
impose a penalty on those who sell foreign goods without a
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OP POWEBfi. 188
license.2i State pilot laws are not embraced in the words
"imposts or daties on imports. "23 A State cannot im-
pose a tax or toll on lumber floated down into another
State.28 A State law providing for a gauser at a port of
delivery is not unconstitutional.^* That the net produce
shall be for the United States applies only to tax laws for
inspection purposes.^s
1 Brown v. Maryland, 12 Wheat. 419; Gibbons v. Offden, 9 Wheat. 1;
Woodruff V. Parham, 8 Wall. 123; Hinson v. Lott, 8 wall. 148; 40 Ala.
123; License Cases, 5 How. 504: 13 N. H. 536: State v. Pinckney, 10 Bich.
474iState V. Charleston, 10 Bich. 240; State Tax on B. B. Gross Beceipts.
15 Wall. 284; Harrison r. Mayor, 11 Miss. 581; Board v. Pleasants, 23
La. An. 349.
2 Brown v. Maryland, 12 Wheat. 419; Hinson v. Lott, 8 Wall. 148; 40
Ala. 123; Bode v. State, 7 GIU. 326: State v. Sluby, 2 Harr. & J. 480;
Wynne v. Wright, 4 Dev. & B. 19: State Freight Tax Case, 15 Wall. 232;
Sheffield v. Parsons, 3 Stewt. & P. 302.
3 Gibbons v. Ogden, 9 Wheat. 1; 17 Johns. 488; 4 Johns. Ch. 150;
Hamilton Co. v. Massachusetts, 6 Wall. 639.
4 Passenger Cases, 7 How. 283 : 45 Mass. 282 ; People v. Downer, 7 Cal.
169; CrandsOl v. Nevada, 6 Wall. 85.
5 Brown v. Maryland, 12 Wheat. 419; License Cases, 5 How. 504;
State V. North, 27 Mo. 464; Biddle v. Commonwealth, 13 Serg. & B. 405.
6 Brown v. Maryland, 12 Wheat. 419; Hinson v. Lott, 8 Wall. 148; 40
Ala. 123.
7 Brown v. Maryland, 12 Wheat. 447; License Cases, 6 How. 604; 13
N. H. 536; Low v. Austin, 13 Wall. 29; Wynne v. Wright, 4 Dev. & B. 19;
State V. Charleston, 10 Bich. 240; State v. Shapleigh, 27 Mo. 464; Wood-
ruff V. Parham, 8 WaU. 123; State Tax on B. B. Gross Beceipts, 15 WalL
284; Murray v. Charleston, 96 U. S. 447; State v. North, 27 Mo. 464.
8 Almy v. People, 24 How. 169 ; Brummagim v. Tilllnghast, 18 Cal. 265.
9 Passenger Cases, 7 How. 283.
10 Ex parte Martin, 7 Nev. 140.
11 Almy V. California, 24 How. 169, distinguished in Pace v. Burgess,
92 U. S. 3.-6.
12 State 9. Delaware L. & A. B. B. Co. 31 N. J. 531.
13 Pennsylvania B. B. Co. v. Commonwealth, 3 Grant, 128.
14 Southern Express Co. v. Hood, 15 Bich. 66.
15 Gibbons v. Ogden, 9 Wheat. 1; Brown v. Maryland, 12 Wheat. 419;
License Cases, 5 How. 504; Pervear v. Commonwealth, 5 Wall. 478;
Waring v. The Mayor, 8 Wall. 110.
16 People V. Moring, 47 Barb. 642; 3 Abb. App. 539; Cook v. Pennsyl-
vania, 6 Amer. L. B. 378.
17 Warhig v. Mayor, 8 WaU. 110; 4 Ala. 139.
18 State V. Pinckney, 18 Bich. 474.
19 Sears v. Commissioners, 36 Ind. 267.
20 Commonwealth v. Ober, 66 Mass. 493.
21 Beall V. Indiana, 4 Blackf. 107; Baguet v. Wade, 4 Ohio, 107; Peo-
ple V. Coleman, 4 Cal. 46.
22 Cooley v. Port Wardens, 12 How. 299; Baker v. Wise, 16 Gratt. 139.
23 C. B. L. Co. V, Patterson, 33 Cal. 334.
Digitized by LaOOQ IC
189 I.IMITATION OF POWERS. Art I
24 Addison V. Saulnler, 19 Cal. 83.
25 Padelford r. Mayor, 14 Ga. 438.
State inspection la^ivB.~The power of the St
pass inspection laws is retained subject to the contr
revision of Congress. ^ The consent of Congress nei
be ^yen in advance, but may be implied from legish
Inspection laws may appl^ to imports as well as exj
A State may lay a tax on imports to pay for servic<
formed in inspecting the articles, if passed in good
and not for the object of raising revenue. * The po'
pass inspection laws involves the power to enforce
and the fees for remuneration of officers are not im]
Whether such fees are excessive is a question to be
mined by Congress. « The removal or destruction
factious or unsound articles is an exercise of the po^
inspection.*^
1 Gibbons v. Ogden, 9 Wheat. 1 ; Brown v. Maryland, 12 Whi
State Ton. Tax. Cases, 12 Wall. 204; Bailroad Co. v. Peniston, ]
29; Sheffield v. Parsons, 3 Stewt. & P. 302.
2 Green v. BIddle, 8 Wheat. 1 ; Virginia v. West Virginia, II "^
3 Neilsont7.Garza,'2 Woods, 287.
4 Green v. State, B. M. Charl. 368.
5 Addison v. Saulnler, 19 Cal. 82.
6 NeUson v. Garza, 2 Woods, 287.
7 Brown V. Maryland, 12 Wheat. 419.
State taxation, when valid.— The authority
State to tax property, business, and persons witl
Hmits, is not affected by this provision.! Goods im]
in the hands of the importer are not a mass of the
erty of the State,^ but after the goods have been broh
for use, or for retail, and been incorporated and mia
with the mass of the property of the State, a tax m
imposed; 8 but if a State singles out imports as a s
object for any impost or duty, it is unlawful,* thougl
becoming incorporated into the mass of State pr<
the State may lay taxes discriminating against t
An importing merchant may be taxed on what he is
like any other citizen ;6 so, a State may tax capit
though continually invested in cotton "purchased f<
portation.7 A purchaser from an importer is subi
taxation.8 The articles cease to be importations th
ment the importer becomes a vendo^.^
1 Baih-oad Co. r. Peniston, 18 Wall. 29.
2 Almy V. California, 24 How. 169; Woodruflf v. Parham, 8 W
Hlnson V. Lott, Ibid. 148; Low v. Austin, 13 WaU. 34.
3 Brown v. Maryland, 12 Wlieat. 419; License Cases, a How. 5:
Year v. Commonwealth, 5 Wall. 479; Waring v. Mayor, 8 Wi
Digitized by LaOOQ IC
Art If § 10 LIMITATION OP POWERS. 190
state Tax on Railroad G. Receipts, 15 Wall. 295; People v. Coleman, 4
Cal. 46; Wynne v. Wrlcht, 4 Dev. & B. 19; Cowles v. Attain, 2 Hawks,
204; Tracy r. State, 3 Mo. 3; Davis v. Dashiel, PhilL (N. C.) 114; Cum-
mings V. Savannab. R. M. Charlt. 26: Biddle o. Commonwealth, 13 Serg.
^ R. 405: Woodruff v. Parham, 41 Ala. 334 ; Murray v. Charleston, 98 u.
8. 447. But see State p. North, 27 Mo. 464. And see Baguet v. Wade,
4 Ohio, 107.
4 People V. Moring 47 Barb. 642.
5 Davis V. Dashiel, Phill. N. C. 114.
6 License Cases, 5 How. 504; 13 N. H.536; State v. Plnckney, 10
Rich. 474.
7 People V. Tax Commissioners, 17 N. T. Supr. 255.
8 Waring v. The Mayor, 8 Wall. 110.
9 State V. Peckham, 3 R. 1. 289.
3 N'o State shall, without the consent of Congress, lay any
duty of tonnage, keep troops, or ships of toar in time of
peace, enter into any agreement or compact toith another
State, or with a foreign power, or engage in war, unless act-
ually invaded, or in such imminent danger as will not admit
of delay.
Tonnage dutiea.—A tonnage duty is a tax on the ca-
pacity of the vessel. 1 The prohibition in this provision
was intended to protect the freedom of commerce, and
should be so construed.^ It is general, withdrawing the
power except by the consent of Congress.^ The consent
of Congress need not be given in advance, but may be
implied from legislation.* Duty signifies a tax, custom,
or toll,'* proportioned to the size of the vessel or its ton-
nage. <i Not only is a. pro rata tax prohibited, but any duty,
whether a fixed sum on tonnage or a sum' comparing the
rate with the tonnage. "^ Thus, a tax on the master or
cargo, or on some privilege to be enjoyed by the vessel,
as of engaging in a particular trade, if really and sub-
stantially a duty on tonnage, is within the prohibition,^
and this protection extends to all vessels employed in the
cbasting trade, whether in commercial intercourse be-
tween the ports of different States, or ports of the same
State; 9 so, a tax on ships entering a port,io or plying the
waters of the State, is void.^i Requiring vessels carry-
ing oysters taken out of the State to take out a li-
cense and pay a tax jjroportioned to the tonnage,^ or lay-
ing a tonnage duty on vessels employed as lighters to
assist vessels engajged in foreign commerce, i« is a viola-
tion of this provision. That the tax does not go into the
public treasury does not prevent its being a duty on ton-
nage. ^^ A tonnage tax cannot be employed as a means
Digitized by LaOOQ IC
191 LIMITATION OP POWEBS. Art. I, § 1i6
of enforcing some law which is within the uonstitutional
authority of the Btate to enact; ^^ so, a State cannot ini'
pose a tax or duty on tonnage to raise revenue to defray .
the expenses of its quarantine sy stem, w but a toll applied
to paying for improvements made on a navigable nver is
not in the nature of a tonnage duty,i7 nor is a toll or duty
on all tonnage carried by a railroad at a certain rate per
mile. 18 X State cannot levy a tax on tonnage upon inter*
state transportation, 10 but a tax on gross receipts is not
repugnant, being in the nature of a general income ;2*
nor are pilot fee8,2i nor charges for wharfage, though
graduated by the tonnage of the vessel.^^
1 Sonth Carolina v. Charleston, 4 Rich. 289.
2 Keokuk N. P. Co. ». Keokuk, 10 Chic. L.N. 91.
S State Ton. Tax Cases, 12 WaU. 214; People v. B. A S. B. R. Co. 15
Wend. 131 ; Steamboat Co. v. Livingston, 3 Cowen, 743; Sheffield v. Par-
sons, 3 Stewt. A P. 302.
4 Green v. Blddle, 8 Wheat. 1 ; Vhglnla v. West Virginia, 11 Wafl. 59.
5 Sheffield v. Parsons, 3 Stewt. & P. 302.
6 Inman S. S. Co. v. Tinker. 94 U. S. 238.
7 Johnson v. Drummond, 20 Gratt. 419.
8 Johnson p. Drummond, 20 Gratt. 419.
9 State Ton. Tax Cases, 12 Wall. 204 ; Lott v. Morgan, 41 Ala. 246.
10 Cannon v. New Orleans, 20 Wall. 6r7; N. W. U. P. Co. v. S. Paul, S
Dill. 454; Steamship Co. v. Port Wardens, 6 WaU. 31.
11 Lott «. Mobile Trade Co. 42 Ala. 578; Lott v. Cox, 43 AlA. 697.
12 Jonson V. Drummond, 20 Gratt. 419.
13 Lott V.Morgan, 41 Ala. 246.
14 Sheffield v. Parsons, 3 Stewt. ft P. 302; Alexander v. R. R. Co. 3
Strob. 594.
15 Johnson V. Drummond, 20 Gratt. 419.
16 Peete V. Morgan, 19 WaU. 581.
17 Thames Bank V. LoveU, 18 Conn. 500.
18 Pennsylvania R. R. Co. v. Commlsslouers, 3 Grant, 128.
lA State Freight-Tax Cas. 15 WaU. 232; Osborne v. MobUe, 16 WalL
479; Southern Exp. Co. v. Mayor, 49 Ala. 404.
^20 State Tax on R. R. Gross Receipts, 15 WaU. 284; Osborne v. Mo-
bile, 16 WaU. 481.
21 Cooley V. Port Wardens, 12 How. 299; Baker t>. Wise, 16 Gratt. 139.
22 Gannon 0. New Orleans, 20 WaU. 577; The Ann Ryan. 7 Ben. 20;
N. W. V. P. Co. r. St. Louis, 4 Car. A L. J. 58: Keokuk v. Packet Co.
Em. 276; Wharf Case, 3 Bland, 361; Keokuk v. K. ft C. Go. 45 Iowa. 196.
Digitized by LaOOQ IC
Art. I, § 10 LIMITATION OF POWERS. 192
Tonnage duty.— When a vessel, as an instrument of
commerce, is required to pay a duty as a condition to her
entry or departure, loadiag or unloading, either on her
tonnage or property, or as a license, it is a duty on ton-
nage under this prohibition.^ A tax levied on a vessel
irrespective of its value as property, and solely and ex-
clusively on the basis of its tonnage, is a duty on tonnaee f
but taxes laid on vessels as property of the State at^er
home-port are valid,^ although registered and enrolled
by the United States.* So, the assessment of a vessel in
its own city for a city tax is not a duty on tonnage.^ A
State law requiring vessels to pay a tee for pilotage is
valid.6 A charge For services rendered or conveniences
provided is in no sense a tax or duty.^ So, a statute
allowing fees to harbor-masters for assigning vessels to
their berths is not a tonnage duty, although the fees are
ascertained by the burden or tonnage ;8 but a law allowing
fees, whether to port-wardens or harbor-masters, whether
rendering services or not, is a duty on tonnage.^ A Stat.e
may legislate as to wharfage, i® and regulate the compen-
sation, ii Wharfage charges are not a duty on tonnage,!^
whether the wharf be built by the State, a municipal
corporation, or a private individual ;i8 but where a stat-
ute discriminates as to products of other States, it is un-
constitutional, i* A tax due from all vessels arriving and
stopping, or departing, and not merely for the use of the
wharf, is inhibited. i^ Neither the State nor a municipal
corporation can impose a tax on tonnage under cover of
a law ostensibly passed to collect wharfage, is A city
may exact and receive a reasonable compensation for the
use of artificial improvements, i" And an ordinance regu-
lating the charge for wharfage maybe enforced unless
beyond the limits of a just compensation. is
1 Gibbons v. Ogden, 9 Wheat. 1 ; Passenger Cases, 7 How. 283 ; Steam-
ship Co. V. Port Wardens, 6 WaU. 31 : State Tonnage Tax Cases, 12 WalL
204; Cannon v. New Orleans, 20 Wall. 577 ; 27 La. Ann. 16.
2 State Ton. Tax Cases, 12 Wall. 204.
3 State Ton. Tax Cases, 12 Wall. 212; Passenger Cases. 7 How. 283:
Lott V. Mobile T. Co. 42 Ala. 578; Lott v. Cox, 43 Ala. 697; Uorgan r.
Parham, 16 Wall. 472.
4 Lott V. MobUe T. Co. 42 Ala. 578; Lott v. Cox, 43 Ibid. 697.
5 The North Cape, 6 Blss. 505.
6 Cooley V. Port Wardens, 12 How. 29; Baker v. Wise, 16 Gratt. 139.
7 Keolnik N. P. Co. v. Keokuk, 10 Chic. L. N. 91 ; 5 Cent. L. J. 504.
8 State V. Charleston, 4 Rich. 286; Benedict v. Vanderbllt, 1 Bobt.
194; Port Wardens v. The Martha J. Ward, 14 La. Ann. 289; Master «.
Prats, 10 Rob. La. 459.
Digitized by LaOOQ IC
193 * UMITATION OF POWERS. Art. X, § 10
9 Southern Steamship Co. v. Port Wardens, 6 Wall. 31 ; Inman S. S.
Co. V. Tinker, 94 U. S. 2 .8; Hackley v. Geraghty. 34 N. J. .132: Sheffield
V. Parsons. 3 Stew, ft P. 303; Alexander v. Railroad Co. 8 Strob. 591.
But see City r. The Nautilus. 8 Int. Rev. Rec. 91 ; Port Wardens v. The
Martha J. Ward, 14 La. An. 289; Port Wardens v. The Charles Morgan,
Ibid. 695.
10 The Ann Ryan, 7 Ben. 20.
11 Cannon v. New Orleans, 20 Wall. 577.
12 Cooley v. Port Wardens, 12 How. 299; Packet Co. «. Keokuk, Sb U.
S. 84; 10 Ch. L. N. 91: 5 Cent. L. J. 504; Cannon v. New Orleans, 20
WalL 577; Sterrett v. Houston, 14 Tex. 166; Municipality v. Pease, 2 La.
Ann. 538; The Ann Ryan, 7 Ben. 20.
13 Packet Co. V. Keokuk, 95 U. S. 84; 10 Ch. L. N. 91; 5 Cent. L. J.
604; Cannon V. New Orleans, 20 WaU. 577.
14 Wharf Case, 3 Bland, 361.
15 Cannon v. New Orleans, 20 Wall. 577 ; Northwestern IT. P. Co. v. St
Paul, 3 DiU. 454; 7 Ch. L. N. 331.
16 Packet Co. v. Keokuk, 95 U. 8. 84: 10 Ch. L. N. 91; 5 Cent. L. J.
504; State Ton. Tax Cas. 12 Wheat. 219; Alexander v. Railroad Co. 3
Strob. 594.
17 Northwestern U. P. Co. v. St. Louis, 4 Dill. 10; 7 Ch. L. N. 881;
Cannon v. New Orleans, 20 WaU. 577; Worsley v. Municipality, 9 Rob.
La. 324; Packet Co. v. Keokuk, 95 U. S. 84; 10 Ch.L.N.91; 5 Cent.L.
J. 504.
18 Packet Co. v. Keokuk, 95 U. S. 84 ; 10 Ch. L. N. 91 ; 5 Cent. L. J. 504.
Agreements or compacts.— The right and duty to
protect the Interests of the States is vested in the General
Government. 1 The term "aereement** includes every
agreement, verbal or written, formal or informal, positive
or implied, with each other or with foreign powers.^ Such
agreement or compact as is in its nature political, or which
may convict with the powers delegated to the General
Government,* as on the question oi boundary between
States,^ or the delivery up of fugfitives,^ cannot operate
as a restriction upon the powers of Congress under the
Constitution. The prohibition is political, and has no
reference to contracts or to the grant of a franchise. "^ The
agreement between corporations chartered by different
States, to unite, is not an agreement or compact between
States.^ The mode or form in which the consent of Con-
gress is to be signified, is left to the discretion of that body.
It need not be given in advance, but may be implied from
legislation.^ A compact made with consent of Congress
is binding on the States entering into the agreement. ^'^
The confederation of the Southern States was in direct
violationofthisclause.il
1 Florida v. Georgia, 17 How. 478.
2 Holmes V. Jennlson, 14 Peters, 540.
3 Union R. R. Co. v. East Tenn. R. R. Co. 14 Oft. 327.
4 Florida V. Georgia, 17 How. 478.
DxsTT Fed. Cott.— it.
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Art. Hf § 1 POWERS OF EXECUTIVE. . 191
5 Holmes V. Jennlson, 14 Peters, 574; 3 Op. Atty. Oen. 661.
6 Wilson V. Mason, 1 Granch, 45; Pennsylvania v. Wheelinff Ac. Br.
Go. 18 How. 421.
7 Union Branch B. B. Co. v. East Tenn. ^ O. B. B. Co. 14 Oa. 327.
8 Dover v. Portsmouth Bridge, 17 N. H. 200.
9 Green v. Biddle, 8 Wheat 1 j Virginia v. West Tlrglnia, 11 WaU*
60: Canal Co. v. Bailroad Co. 4 Gin A J. 1.
10 Poole V. Fleeger, 11 Peters, 185.
11 In re Milner, 1 Bank. Beg. 107.
ARTICLE n.
lUJBODTiVJfi DXPABTXBVT.
SBOTIOir 1.
Powers qf Executive.
1. President and Vice-President. Terms of.
2. Electors.
8. Manner of choosing President hy electors.
4. Time of choosing electors.
5. President's qnallncations.
6. Vacancy in office of.
7. Salary.
8. Oath.
Sec. 1. 1 27^6 executive power shall he vested in a Presi-
dent of the United States of America. He shall ?wld his
office during the term of four yearSy and, together with the
Vice-Presidentt chosen for the same term, be elected, as fol-
lows:
Xizecutive power.— The President is invested with
certain political powers, in the exercise of which he may
use his discretion, which is beyond the control of the
judiciary. 1 As far as his powers are derived from the
Constitution, he is beyond the reach of any other depart-
ment, except in the mode prescribed— throujjh the im-
peaching power.^ He is exempt from the writ of habeas
corpus.^ Me is authorized to appoint certain officers in
the executive departments, the discharge of whose duties
is under his direction.^ Congress may authorize the Presi-
dent to restrict or regulate the introduction of merchan-
dise into a territory under such penalties as Congress may
prescribe ;fi but he has no couunon-law prerogative to
Digitized by LaOOQ IC
195 powEBs OF EXBcnriYE. Art. II, § 1
interdict commercial intercourse with any nation, or re-
vive any act whose operation has expired.^ So, Congress
may authorize the JPresident, during a certain period,
to suspend the writ of habeas corpus when, in his judg-
ment, the public safety requires it.'' If the President
assumes powers which should have the authority or sanc-
tion of Congress, a ratification cures the defect.^ Congress
may impose on any executive officer any duty which is
not repugnant to any right which is secured and protected
hy the Constitution.^
1 Marbury v. Madison, 1 Cranch, 165.
2 Kendall v. U. S. 12 Peters, 524; 5 Crauch G. C. 163; In re Keeler,
Hemp. 306.
3 In re Keeler, Hemp. 306.
4 Marbury r. Madison, 1 Cranch, 165; Kendall v. U. S. 12 Peters, 524;
r> Cranch C. C. 163.
5 The Louisa Simpson, 2 Sawy. 57; U. S. v. The Francis Hatch, 13
Am. Law Beg. 289.
6 The Orono, 1 Gall. 137.
7 McCall V. McDowell, Deady, 233; 1 Abb. U. S. 212; In re Oliver, 17
Wis. 681.
8 Prize Gases , 2 I lack, 635.
9 Marbury v. Madison, 1 Cranch, 137; Kendall r. U. 8. 12 Peters, 824;
5 Cranch C. G. 163.
^Each State shall appoint^ in such manner as the legislature
thereof may direct, a number of electors, equal to the whole
number of Senators and Representatives to which the State
may be entitled in the Congress : but no Senator or Represent-
ative, or person holding an office of trust or profit under the
United States, shall be appointed an elector.
Electors, choice of.— A State law directing the man-
ner of appointment of electors has its authority solely
from the Constitution. ^ The disqualification of the per-
son having the highest number of votes does not have the
effect of electing the minority candidate; ^ such disquali-
fication cannot be removed by resignation, unless the
resignation takes place before tho election. The office
of Commissioner of the United States Centennial Com-
mission is an office of trust. A person disqualified as an
elector by holding "office of trust or pront" under the
United States, cannot remove the disqualification by res.
ignation unless it precedes his appointment as elector.
1 Ex parte Hayne, 1 Hughes, 571.
2 In re Corliss, 11 B. 1. 638: 16 Am. Law Reg. 15.
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J^Ct, U, § 1 POWERS OF EXECUTIVE. 196
^[The electors shall meet in their respective States t and vote
tfjfOallot for two persons t of whom one at least shall not he an
vmahitant of the same State with themselves. And they shaU
make a list of all the persons voted for^ and of the number of
votes for each ; which list they shall sign and certify ^ and
transmit sealed to the seat of the Government of the united
3tateSy directed to the President of the Senate. The Presi-
dent of the Senate shall^ in the presence of the Senate and
House of Representatives, open all the certificates, and the
votes shall then he counted. The person having the greatest
number of votes shall he the President, if such numoer he a
mjajority of the whole number of electors appointed ; aiid if
there he more than one whx> have such majority, and have
an equal number of votes, then the House of Representatives
shall immediately choose by ballot one of them for President;
and if no person have a majority, then from the five highest
on the list the said House shall in like manner choose the
President, But in choosing the President, the votes shall be
taken by States, the representation from each State haxing
one vote ; a quorum for this purpose shall consist of a mem-
ber or members from two-thirds of the States, and a major-
ity of all the States shall be necessary to a choice. In every
case, after the choice of the President, the person having the
greatest number of votes of the electors shall be the Vice-Pres-
ident. But if there should remain two or more who have emial
votes, the Senate shall choose from them by ballot the Vice-
President.^
Superseded by xnth Aiuendment, pott.
* The C(mgress may determine the time of choosing the
electors, ana the day on which they shall give their votes ;
which day shall be the same throughout the United States.
• No person except a naturcU-hom citizen, or a citizen of
the United States at the time of the adoption of this Constitu-
tion, shall be eligible to the office of President; neither sfiall
any person be eligible to that office who shall not have attained
to the age of thirty-five years, and been fourteen years a resi-
dent within the United States.
8 In case of the removal of the President from office, or of
his death, resignation, or inability to discharge the powers
and duties of the said office, the same shall devolve on the Vice-
President, and the Congress may by law provide for the case
of removal, death, resignation, or inability, both of the Pres-
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197 POWERS OF EXECUTIVE. Art H, § 2
ident and Vice-Presidentj declaring what officer shall theA act
as President, and such officer shall act accordingly, until the
disabUity be removed, or a President shall be elected.
7 The President shall, at stated times, receive for his services,
a compensation, which shaM neither be increased nor dimin-
ished during the period for which he shall have been elected,
and he shall not receive within that period any other emolu-
ment from the United States, or any of them.
8 B^ore he enter on the execution of his o^ce, he shall tdke
the following oath or affirmation: **Ido solemnly swear (or
affirm) that I will faithfully execute the office of President of
the United States, and will, to the best of my ability, preserve,
protect, and defend the Constitution of the United States."
Oath. — ^The President is the only officer required to
take this oath.^ The oath simply obliges the President to
obey the Constitution, and to use the power which it con-
fers on him to cause others to obey it. 2 The oath gives
the President no additional powers.^
1 ItetropoUtan Bank v. Van Dyck, 27 N. T. 408.
2 Oriffln V. WUcox, 21 Ind. 870.
S In re Kemp, 16 Wis. 359.
SSOTION 2.
Other powers and duties.
1. Act as Commander-In-Ghlef . Reprieves, pardons.
2. To make treaties, how. Appointments.
8. To fill vacancies.
Sec. 2. 1 The President shall be Commander-in-Chief of
the Army and Navy of the United States, and of the militia of
the several States, when called into the actual service of the
United States ; he may require the opinion, in writing, of the
principal officer in each of the Executive Departments, upon
any subject relating to the duties of their respective offices,
and he shall have power to grant reprieves and pardons for
offenses against the United States, except in cases of impea^h-
m£nt.
Digitized by LaOOQ IC
Art. n, § 2 POWEBS OF EXEOTrnvE. 196
Ab Commander-in-Chief .—The power of calling out
the militia is conferred on the President, ^ and his author-
ity to decide that the exigency has arisen is vested exclu-
sively in him.2 Where the law gives the President a dis-
cretionary power he is the sole and exclusive judge of the
existence or the facts.s On the application of a State the
President may call forth the militia to suppress an insur-
rection.* He is authorized by law, previous to a declara-
tion of war by Congress, to meet invasion or insurrection
by military force. ^ His power as Commander-in-Chief is
limited by the laws and usages of nations,^ and to be used
only in the manner prescribed by the legislative depart-
ment, "^ and his orders are no protection to an officer acting
under them unless warranted by law. 8 So, an instruction
to an officer cannot legalize an act which without it would
have been a trespass.^ It must be exercised in strict ac-
cordance with the right of appointment of military offi-
cers expressly reserved to the States.^® As Commander-
in-Chief he may establish rules and regulations for the
government of the forces, or modify, or repeal, or create
them anew, 11 which action must be promulgated through
the Secretary of War. 12 He may direct the movement of
the forces, and employ them in any manner he may deem
most effectual. 1^ He may declare a blockade of hostile
ports in a civil war as well as in a foreign war,i* or may
contract with secret agents to obtain information regard-
ing the enemy's resources and motions, and direct pay-
ment therefor out of the contingent fund.i* and if money
is advanced by direction of the head of the proper depart-
ment the direction of the President will be presumed. i«
In case of insurrection he may accord to the enemy the
character of beUigerents.^''^
1 Amer. Ins. Co. v. Canter, 1 Peters, 542; In re Oriner, 16 Wis. 423:
Dreucker v. Salomon, 21 Wis. 621.
2 Martin v. Mott. 12 Wheat. 29: Prize Cases, 2 Black, 670; McCaU 9.
McDowell, 1 Abb. U. S. 219; Deaay, 233; Dreucker v. Salomon, 21 Wis.
621.
3 Martin v. Mott, 12 Wheat. 29; Lather v. Borden, 7 How. 43; U. S.
V. Packages, 11 Am. Law B. 419: Kulp v. Blcketts, 20 Leg. Int. 268;
Hodgson V. MUlward, Ibid. 164,348; Ohio v. Bliss, 11 Pitts. L. J.S04:
Exparte Field. ft Blatchf . 80.
4 Luther v. Borden, 7 How. 43; U. S. v. Cruikshank, 92 IT. S. 556.
5 Prize Cases, 2 Black, 668. See Act of February 28th, 1795.
6 In re Kemp, 16 Wis. 359; Ex parte Milllgan, 4 Wall. 2.
7 Anonymous, 9 Opin. Att. (xon. 518.
. 8 Little V. Barreme, 2 Cranch, 170^
9 Little V. Barreme, 2 Cranch, 170.
10 Anonymous,2 0pin. Att. Gen. 711.
Digitized by LaOOQ IC
Id9 POWERS OF EXECUTIVE. Art. II, § 2
11 U. S. ». EUason, 16 Peters, 291 ; U . S. v. Webster, 2 Ware (Dav.) 46;
In re Grlner, 16 Wis. 423.
13 U. S. V. EUason, 16 Peters, 291.
13 Fleming v. Page, 9 Uow. 603.
14 The Tropic Wind, 24 Law Bep. 144; Prize Gases, 3 Black, 635.
15 Totten r. U. S. 92 U. 8. 105.
16 U. S. V, Cutter, 2 Curt. 617.
17 Prize Cases, 2 Black, 635.
Authority over conquered territory.— The hold-
ing of conquered territory is a mere military occupatioA
until determined by treaty, i Such conquests do not en-
large the boundaries of the Union.^ If ceded by the
treaty of peace the acquisition is confirmed, and the ter-
ritory becomes a part of the nation to which it is annexed. »
It is a military duty of the President, as Commander-in-
Chief, so long as war continues, to provide for the security
of persons and property, and for the administration of
justice;* and to this end he may institute a temporary
military government where the laws cannot be executed
without it,6 which will continue to be operative until
official information of the ratification of the treaty of
peace. <* This power must be exercised in subordination to
tlie Constitution," but this power does not extend to the
repeal or contradiction of existing statutes, or to the mak-
ing provisions of a legislative nature. ^ He may cause all
the laws of the State to be administered and executed,or to
be disregarded and set at naught.^ Where neither he nor
Congress dissolve the civil government established in the
exercise of provisional rights, the inference is that it is
meant to be continued. ^^ The President as Commander-in-
Chief may establish provisional courts in the territory-
taken by the national forces, to continue during the war.fi
When a State government is overthrown by rebellion, the
President, on obtaining possession of the territory, may ap-
point a military governor, ^^ and may delegate his powers
to such provisional governor, is A military governor may
create courts for the administration of justice, i* and ap-
point judges with authority to hold such courts.i^ He
may levy and collect taxes under laws not superseded by
the conqueror. 18 A provisionalgovemment may be estab-
lished under authority of the United States, and the acts
of its officers are valid and obligatorv, but private re-
lations are in force, except so far as they are in conflict
with the Constitution. 18 The ordinance of such provis-
ional government supersedes institutions of the van-
quished country which are incompatible with it,i9 and its
authority does not terminate until by direct legislation by
Digitized by LaOOQ IC
Art. n, § 2 POWJSBfii of EXECUTItrE. '^
Congress or by the territorial ffOverimient.«> Tlie i^esi-
dent may adopt means to enable the people of siich ter-
ritory to meet in convention to form a new State, gbvern-
ment,2^ and may exclude particular persons from voting
for such delegates.23
1 American Ins. Co. v. Canter, 1 Peters, 542.
2 Fleming v.Pasre, 9 How. 603.
3 Amer. Ins. Co. v. Canter, 1 Peters, 542; Leitersdorfer v. Webb,
20 How. 176.
4 The Grape Sliot, d Wall. l^i).
5 Orlffln V. Wilcoi, 21 Ind. 370.
6 Cross V. Harrisori, 16 How. 164.
7 Scott V. Blligerry, 40 Miss. 119,
8 Anonymoas, 6 Op. Atty-Gen. 10.
9 Scott V. BiUgerry, 40 Miss. 119.
10 CJross V. Harrison, 16 How. 164.
11 The Grapeshot, 9 Wall. 129; KimbaU v. Taylor, 2 Woods, 37; Arrii-
istead v. State, 43 Ala. 340; Powell v. Boon, 43 Ala. 469; Bark v. Trisre,
22 La. An. 629. .
12 feutledgi? f . Fogg, 3 Cold. 554; Texas r. White, 7 Wall. 700.
13 Scott v.Biiigetry, 40 Miss. 119.
14 Scott V. Billgerry,40 Miss. 119; Mechanics' and T. Bank v. Union
Bank, 22 Wall. 276.
15 Peniiywlt v. Eitton, 15 Wall. 382; Mechanics' Bank v. Union Bank,
22WW1.276.
16 Bntledge v. Fogg, 3 Cold. 554.
17 Armistead v. State, 43 Ala. 340; Powell v. Boon, 43 Ala. 459.
18 Leitensdorfer v. Webb, 20 How. 177.
19 Leitensdorfer v. Webb. 20 How. 176.
20 Leitensdorfer v. Webb, 20 How. 176.
21 Ex parte Hughes; PhiU. N. C. 57.
22 Ex parte Hughes, PhiU. N. C. 57.
Ilkartiai tavr is the law of force applied where civil
law is suspended by force. It is the war power bf the
President, and all he possesses independently of thb civil
law.i It exists only in case of necessity 2 — such a neces-
sity as effectually closes the courts and deposes the civil
administration.^ It cannot arise from a threatened inva-
sion,* but from the fact of the existence or immediately
impending force at a given place and time.^ It is limited
to those places within the theater of war, or its vicinitjr ® —
the precise limits to be determined according to thb bir-
cumstances of each case.^ Its duration is limited by its
necessity. 8 After the insurrection is suppressed and a
provisional government established, and a StJlte constitu-
tion adopted, a citizen cannot be tried by court-martial
Digitized by LaOOQ IC
901 POWERS OF EXECUTIVE. Art. II, § 2
for an alleged crlme.o The President during theEebellion
liad no power to arrest or imprison any person not sub-
ject to military law without process of tiie court, lo but a
general order of the President authorizing the arrest of
persons absenting themselves to avoid the draft was
valid. 1 1 To suspend the writ of habeas camus is a legisla-
tive power vested in Congress, and not in the executive.**
State courts have no authority by habeas corpva over per-
sons held under authority of the United States.^^
1 Griffin V. WUcox, 21 iDd. 370.
2 £z parte Easan, 5 BlatcM . 319.
3 Ex parte Mllligan, 4 Wall. 2; Johnson v. Jones, 44 IIL 142; Skeen v.
Monkeimer. 21 Iiid. 1 ; Griffin v. Wilcox, 21 Ind. 370: Johnson «. Jones.
44 Dl. 157 ; In re Kemp, 16 Wis. 359.
4 Ex parte Milll£;an, 4 WaU. 2.
6 Griffin V. Wilcox, 21 Ind. 370.
6 Ex parte MllUgan, 4 WalL 2; Jones v. Seward, 40 Barb. 563; In re
Kemp, 16 Wis. 359.
7 In re Kemp, 16 Wis. 353.
8 In re Mllligan, 4 Wall. 2.
9 Ex parte Eaffan, 5 Blatchf . 319.
10 Jones v. Seward. 40 Barb. 563.
11 Allen «. Colby, 47 N.H. 544.
12 In re Kemp, 16 Wis. 359.
13 Tarble's Case, 13 Wall. 397.
Power to pardon.— Pardon is an act of grace from
the power intrusted with the execution of the laws, ex-
empting from punishment which the law inflicts, i The
word ''pardon'* must be construed with reference to its
meaning at the time of the adoption of the Constitution.^
The power herein granted is not to pardon, but to grant
reprieves and pardons,^ and includes amnesty;^ but am-
nesty proceedings did not give back property which had
been sold under confiscation acts.^ The power to grant
reprieves and pardons, except in cases of impeachment,
is unlimitedjfi and is vested exclusively in the President,*
and not subject to the interference of Congress,'^ and con-
tinues as long as any of the legal consequences of the
offense remain. ^ It may be exercised as well before trial
as after conviction,^ or after expiration of part of the
sentence,^^' and includes the power to commute the sen-
tence. 11 The power extends to all kinds of pardons known
to the law as such, 12 either general, special, or particular,
conditional or absolute, or statutory, not necessary in
some cases, and in some grantable of course.^ It may be
conditional. 18 This grant of power must be held to carry
Digitized by LaOOQ IC
Art. H, § 2 POWERS OF executive. 203
with it the power to release from fines, penalties, and
forfeitures which accrue from the offense.^* But the
exercise of this power will not defeat legal rights which
have become vested ;is so, a general pardon ana amnesty
do not entitle one receiving tliem to the proceeds of prop-
erty previously condemned and sold under confiscation
acts. ^* The power does not embrace the power to relieve
from the payment of taxes assessed for violation of the
revenue laws.i^ nor to the remission of a forfeiture of a
bail-bond. 18 The power extends to cases ex necessitate
legislative, as where a female, after conviction, is found
to be enceinte^ or when insanity supervenes, i^ A full
pardon releases the punishment, and blots out the exist-
ence of the guilt. 20 Delivery is essential, and delivery is
not complete till acceptance. *i Until delivery, a pardon,
though signed and sealed, may be recalled and canceled
by tne President granting it, or by his successor.22 The
amnesty proclamation included aliens domiciled in the
rebel States.28
1 U. S. V. Wilson, 7 Peters, 159.
2 U. S. V. Wilson, 7 Petei^ 163; Calder v. Bull. 3 Dall. 386; Gathcart
V. Bobiuson. 5 Petera, 264; watsou v. Mercer, 8 Peters, 75; Carpenter v.
Pennsylvania, 17 How. 456; U. 8. v. Harris, 1 Abb. U. S. 115; £z parte
Wells, 18 How. 316; U. S. r. Athens Armory, 2 Abb. U. S. 150.
3 Ex parte Wells, 18 How. 316.
4 U. S. r. Klein, 13 Wall. 128.
6 Semines v. U. S. 91 U. S. 21 ; Wallach v. Van Riswick, 92 U. S. 202,
explaining Day v. Micou, 18 Wall. 156, and Bigelow v. Forest, » Wall.
839; Ex parte Garland. 4 Wall. 33; U. S. v. Klein, 13 WaU. 147; U. &,v.
Tbomasson, 4 Blss, 340. But it relieved claimants of captured and
abandoned property of the necessity of proving adherence to the
United States— Armstrong r. U. S. 13 wall. 15'j; Pargondt>. U. S. Ibid.
156. Sec the Addso, 11 Op. Att. Gen. 445.
6 U. S. V. Klein, 13 Wall. 128.
7 Ex parte Garland, 4 Wall. 38; U. S. v. Klehi, 13 Wall. 147.
8 Stetler's Case, Phill. (N. C.) 302.
9 Anonymous, 6 Op. Attoniey-(Jeneral, 20.
10 Stetler's Case, Phill. (N. C.) 302.
11 Ex parte WelLs, 18 How. 307.
12 Ex parte tVclls, 18 How. 314 ; Ex parte Garland. 4 Wall. 380.
13 Ex parte Wells, 18 How. 314; U. S. v. Wilson, 7 Peters, 161 ; Anon-
ymous, 1 Op. Attorney-General, 341; Anonymous, Ibid. 482; Case of
See-sec-sa-ma, 6 Ibid. 3(58; People v. Potter, I Park. Cr. B. 47; FlaveU'a
Case, 8 Watts. & S. 197.
14 Osbomtj. U. S. 91 U. S. 474; U. S. v. Harris, 1 Abb. U. S. 114; U. S.
r. Wilson, 7 Peters. 150; Ex parte Wells, 18 How. 807; U. 8. v. Lancaster,
4 Wash. C. C. 6i>; The Hoilen, 1 Mason, 431; State v. Farley, 8 Blatchf.
229; State v. Simpson, 1 Bailey, 378; Matt, of Floumey, 1 Kelly (Ga.)
606; Stato r. McO^Blenis, 21 Mo. 272: Playford v. Commouwealth, 4 Pa.
St. 144: State v. Williams, 1 Nott. & McC. 26; Ex parte McDonald, 2
Digitized by LaOOQ IC
203 POWEBS OF EXEOUTIYE. Alt II, § 2
Wbart. 440; Duncan v. Commonwealth, 4 Serg. A; B. 451; The Titi, 4
Op. Att.-Oen. 573; Anon. 4 Op. Att.-Qen. 317 ; Armstrong's Foundry, 6
Vr all. 769.
15 n. S. V. Lancaster, 4 Wash. O. C. 64; U. S. v. Morris, 10 Wheat. 246;
U. S. V. Wilson, 7 Peters, 150; Anonymous, 4 Op. Attoniey-General, 576;
Cases of Drayton and Sears, 5 Ibid. 532, 579; I^ucison's Case, 6 Ibid. 615.
16 Knote V. U. S. 6 Amer. L. B. 273. The pardoning power has no
authority to decree a repayment of a fine— Cook v. Middlesex, 3
Dutch. 437.
17 U. S. V. Boelle. 11 Chic. L. N. 19.
18 Columbian Ins. Co. v. Ashby, 4 Peters, 144.
19 Ex parte Wells, 18 How. 307.
20 Ex parte Oarland.4 WaU. 333; U. S. v. Klein, 13 Wall. 128; U. S. v.
Padelford,9WaU.542.
21 U. S. V. Wilson, 7 Peters, 150; In re CalUcott, 8 Blatchf. 89.
22 In re De Puy, 3 Ben. 307.
23 Carlisle V. U. S. 16 WaU. 148.
^He shall Iiave power, by and with the advice and consent
of the Senate, to make treaties^ provided two-thirds of the
iSenators present concur ; and he shall nominate, and by and
with the advice and consent of the Senate, shall appoint am-
bassadors, other public ministers and consuls, Judges of the
Supreme Court, and all other officers of the United States,
whose appointments are not herein otherwise provided for,
and which shall be established by law : but the Congress may
by law vest the appointment of such inferior officers as they
think proper, in the President alone, in the courts of law, or
in the heads of departments*
A treaty is in its nature a contract between two na-
tions, to be carried into execution by the sovereign power
of the respective parties, i It cannot deprive Congress of
any part, of its legislative power.2 The power to make
treaties includes the power to acquire new territory; and
this extends the power of legislation over such new terri-
tory.8 Indians may be made citizens by treaty.* An In-
dian treaty may stipulate that the law prohibiting the sale
of spirituous liquors in the ceded territory shall remain in
force, although the land lies within the limits of a State.*
The President is made the only legitimate agent of the
Government to open and carry on correspondence with
foreign nations in matters concerning the interests of the
country or its citizens, and this duty is in his discretion. ^
So, citizens abroad must look to the President for protec-
tion.* The power to make treaties is plenary.^ The recog-
nition and enforcement of the principles of public law are
the ordinary subject of treaties ;8 but the political rights
Digitized by LaOOQ IC
A]:t.II,§2 POWERS OF EXECUTIVIS. 20(
of tbe people of the several States, as such, are not stib-
jects of treaty stipulations.® A treaty made by the United
States, removing the disability of aliens to inherit, is valid,
and within the intent of the Constitution, lo So, a treaty
enabling them to purchase and hold lands in the United
States is valid. ^^ Congress may create a judicial system
by treaty. 12
1 Foster v. Neilson, 2 Peters, 314.
2 Ware v. Hylton, 3 Dall. 199; Scott v. Sandford. 19 How. 629.
8 Amer. Ins. Co. v. Canter, 1 Peters, 511; Scott v. Sandford, 19 How.
S93.
4 U. S. V. Rhodes, 1 Abb. U. S. 43; Amer. Ins. Co. v. Canter, 1 Peters,
511 ; Cross v. Harrison, 16 How. 164 ; U. S. v. Lariviere, 23 B. 1. 305.
5 Durand o. Hollins, 4 Blatchf . 451.
6 Durand v. Hollins, 4 Blatchf. 451.
7 Holmes v. Jennison, 14 Peters, 540 ; U. S. r. Gallons, 93 U. S. 18B;
People V. Gerke, 5 Cal. 881.
8 People©. Curtis, SON. Y. 321.
9 License Cases. 5 How. 504; 13 N. H. 336.
10 People V. Gerke, 5 Cal. 381.
11 Chirac v. Chirac, 2 Wheat. 259.
12 Forbes v. Scannell, 13 Cal. 242.
Appointment and removal.— An office is a public
charge or employment, and he who performs the duties is
an officer, A but a man employed under a contract is not
necessarily an officer. ^ The mere direction that a thing
shall be done does not coustitute an office.^ The appoint-
ment and removal of an officer is a necessary incident to
executive power.* The power of the President to appoint
includes the power to remove ; ^ so, the President may re-
move any officer, whether civil or military, unless Con-
ffliess shall have given some other duration to the office. °
The power to remove an officer appointed by the President
and Senate is vested in the President alone; ' so, the 'Fres-
ident may remove a territorial judge, 8 or may strike a mil-
itary officer from the roU.^ All oflScers other than judicial
officers hold during pleasure, lo Aremova Imay be either
express, by notification, by order of the President, or im-
plied by appointment of another person to the same of-
fice, but notice must be actually received by the person
removed. 11 A civil officer may resign at pleasure, and
the President cannot compel him to remain, nor is it nec-
essary that the resignation should be received to take ef-
fect." "He shall nominate," means to recommend in
writing; in this form the advice of the Senate is asked. i^
Nominatingand appointing are distinct acts from commis-
sioning, i* The extension of a term must be by nomina-
Digitized by LaOOQ IC
206 POWEES OF EXBCUTIVB. Art. II» § 9
lion or new appointment by the President, with the con-
cnrrence of the Senate. ^^ He may appoint diplomatic
agents of anv rank at any place or time; ^^ he may appoint
collectors of taxes and internal duties ;i7 but he cannot
make a temiM)rary appointment in a recess, if the Senate
was in session when or since the the yacancy occurred. ^^
Congress cannot by law designate the person to fill an
office ;^o the Senate can only ai&rm or reject the appoint-
ment.3<* The successor to an appointee refusing to accept
is in the place of the appointee, and not the original
holder.2i The commission is conclusive of the appoint-
ment,22 but until signed the appointment is not fully con-
summated.^ Neither the transmission of the commission
to the appointee nor an acceptance thereof is necessary to.
comi>lete his rights.^* Heads of departments can make
appointments only in those cases authorized by law.2*
All officers under the Federal Government, except such
as are expressly provided in the Constitution, shall be es-
tablished by law.20 All inferior officers, appointed by
authority of law, hold their offices at the discretion of
the appointing power. 27 The appointment of clerks of"
courts properly belongs to the courts of law, 28 but Con-
gress may restrict the appointment of a commissioner,
although nift powers are of a judicial nature. 29 A State
magistrate who commits offenders against the laws of the
United States, is not within this clause.^
1 U. S. V. Maurice, 2 Brock. 96.
2 n. S. V. Maurice, 2 Brock. 96.
3 n. S. V. Maurice, 2 Brock. 96.
4 E;x parte Hennen, 13 Peters, 213.
5 Sx parte Hennen, 13 Peters, 213; Gratiot v. U. S. 1 Ct. CI. 253;
KeeDant;.Perry,24 Tex. 253.
6 Gratiot V. V. S. 1 Ct. CI. 258.
7 The Hennen, 13 Peters, 230; U. S. v. Avery, Deady, 204.
8 The Hennen, 13 Peters, 213: Anonymous, 3 Opln. Att. Oen. 673;
Anonymous, 5 Ibid. 288.
9 Case of Bandolph, 4 Op. Att. Gen. 1.
10 Keenan V. Perry, 24 Tex. 258.
11 Bowerhank v. Morris, Wall. Sr. 118; Ex parte Hennen, 13 Peters,
230.
12 U. 8. V. Wright, 1 McLean, 509.
13 Harbury v. Madison, 1 Cranch, 137; 7 Op. Att. Gon« 186
14 Marbury V. Madison. 1 Cranch, 137.
15 Case of District Attorney, 16 Am. Law Beg. 786.
16 Anonymous, 7 Op. Att. Gen. 186.
17 U. S. V. Klrkpatrlck, 9 Wheat. 720.
Destt Fbd. Cos.— 18.
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Att* H, § 3 POWERS OF EXECUTIVE. 206
18 Case of District Attorney, 16 Am. Law Beg. 786.
19 U. S. V. Ferreira, 13 How. 40.
f^ Anonymous, 3 Op. Att. Gen. 188.
21 Marbury v. Madison, 1 Cranch, 138; IT. S. v. Klrkpatrlck, 4 Wheat.
mi Johnson v. V. S. 5 Mason, 438; Bo .\erbaDk v. Morris, WalL Sr. 418.
22 U. S. V. Le Baron, 19 How. 74.
23 Case of Coxe, 4 Op. Att. Gen. 218.
34 Marbury v. Madison, 1 Gninch, 138.
i& U. S. 0. Maurice, 2 Brock. 96.
26 U. S. V. Maurice, 2 Brock. 96.
27 Ex parte Hennen, 13 Peters, 230; U. S. v. Avery, Deady, 204.
28 Ex parte Hennen, 13 Peters, 230; In re Shipping Commissioner et
lf:Y.13mtchf.846.
39 Ex parte Robinson, 6 McLean, 859.
39 £x parte Gist, 26 Ala. 196.
* The President shall have power tojUl up aU vacancies that
may happen during the recess of the S&nate, by granting com-
missions which shall expire at the end of their next session.
This power is not confined to vacancies which may
happen in offices created by law.i The, commission of an
officer appointed during the recess, and afterwards nom-
inated and reiected, continues in force till the end of the
next session.^ If the Senate concur it is a new appoint-
ment, and a new bond will be required.'
1 U. S. V. Maurice, 2 Brock. 96.
2 Hill's Case, 2 Opln. Att. Gen. 336; Tyson's Case, 4 Ibid. 90.
3 U. S. V. Klrkpatrlck. 9 Wheat. 733.
SXOTIOK 3.
Messages. Reception of Ambassadors, etc. Commissioning (iffieers.
Sec. 3. 1 He shall frtym time to time give to the Congress
information of the state of the Union, and recommend to their
consideration such measures as he shall judge necessary and
expedient; he may, on extraordinary occasions, convetie both
Houses, or either of them, and in case of disagreement between
them, with respect to the time of adjoumment, he may adjourn
them to such time as he shall think proper; he shall receive
ambassadors and other pvhlic ministers ; he shall take care
that the laws be faithfully executed, and shall commission aU
the officers of the United States.
Digitized by LaOOQ IC
307 POWKB8 OF EXEUUTiVjfi. Art. II, § 4
He shall take care that the laws be faithfully
ezecnted as they are expounded and adjudged by the
co-ordinate branch of the Government to which that
duty is assigned,^ to the extent of the defensive means
placed in his hands; 2 but only by such means as the Con-
stitution and laws theniselves have given him power to
employ ;S and in this he cannot be enjoined by the Supreme
Court,^ bis discretionary power being beyond judicial
control .5 Under this power the executive ought to order
suits in all cases when the laws are infracted and the
rights of government invaded. ^ The President has no
power to dispense with or forbid the execution of any
law," nor can ne be restrained from carrying into effect an
act of Congress alleged to be unconstitutional. ^ In case
of revolution or dismemberment of a nation the judiciary
cannot take notice of any new government or sovereignty
until recognized by the political department.^ Commis-
sioning and appointing are distinct powers.^^
1 ExparteMerryman, Taney, 246.
2 Anonymous, 9 Opin. Att. Gen. 524.
3 In re Kemp. 16 Wis.. 3S9.
4 Mississippi p. Johnson, 4 Wall. 496.
5 Marbnry v. Madison, 1 Granch, 137 ; Kendall v. Stockton.. 12 Peters,
SZJ; Prize Cases, 2 Black, 635; State v. Southern Pac. B. B. 24 Tex. 177.
6 State V. Delesdemier, 7 Tex. 95.
7 KendaU p. U. S. 12 Peters, 524 ; 5 Cranch C. C. 163.
8 Mississippi V. Johnson, 4 Wall. 475.
9 U. S. V. Pahner, 3 Wheat. 634: Hays v. Gelston, 8 Wheat. 323; Bose
V. Honely, 4 Cranch, 441; The Divina Pastora, 4 Wheat. 52; Nuestra
Senora de la Caridad, 4 Wheat. 497 ; Prize Cases. 2 Black, 635 ; Luther v,
Borden, 7 How. 1.
10 MartMuyo. Madison,! Cranch, 151.
Section 4.
Removea of qfflcen an impeachmmt.
Seo. 4. 1 The PreHdenty Vice-President, and all civil offi-
cers of the United States, shall be removed ftom office on im-
peachment for, and conviction of, treason, bribery, or other
high crimes and misdemeanors.
Civil officen.— A Senator or member of Gonflnress is
not such ftn officer,^ but United States Circuit and District
Judges are such.^
1 Bloont's Trial, 102.
2 Peck's Trial, 20 Chase's Trials, 137.
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Art. TIT, § 1 JUDICIAI. DEPABTIOEIIT. 206
ARTICLE in.
JUDICIAL DB^ABTMEKT.
SSCTIOir 1.
Supreme and inferior Court*. Term of qjfiee and compensation cf Judga.
Sec. 1. 1 The judicial power of the United States shall be
vested in one Supreme Court, and in such inferior courts at
the Congress may from time to time ordain aiid establish.
The Judges, both of the Supreme and inferior courts^ shall
hold their offices during good behavior, and shall, at stated
times, receive for their services a compensation, which shall
nQt be diminished during their continuance in office.
Power of Congress.— Congress cannot oonfer any
Sart of the judicial power upon an executive officer.'
ongress cannot give jurisdiction or require services of
any officer of a State government.*-* Congress cannot vest
any portion of the judicial power of tlie United States,
except in courts ordained and established by itself, < nor
vest any portion of the jurisdiction of the United States
in State courts.* A State court cannot exercise jurisdic-
tion conferred upon it by Congress.^ Congress cannot
enforce jurisdiction on a State court, ^ nor compel a State
court to exert jurisdiction,"^ nor can Congress give juris-
diction, or require service of any officer oia State govern-
ment as 8uch,8 nor confer jurisdiction on a military com-
mission. ^ This clause does not apply to or prohibit the
establishment of military courts in the insurrectionary
States.io Congress may authorize any United States court
to perform any act which the Constitution does not require
to be performed in a different manner, n
1 Beattyr.U. S. lDev.231.
2 £x parte Pool, 2 Ya. Cas. 276 ; Prlgg v. Pennsylvania, 16 Peters, 539.
3 U. S. V. Ames, 1 Wood. & M. 89: The British Prisoners, 1 Wood. A
M. 66; Martin v. Hunter, 1 Wheat. 304; Houston v. Moore, 5 Wheat 1:
3 Serg. & B. 169; Ex parte Knowles^S Cal. 300; Davison v. ChanpUn,?
Conn. 244: Ely v. Peck, 7 Conn. 239: U. S. v. Lathrop. 17 Johns. 4; State
tK McBride, Bice, 400; Jackson v. Bose, 2 Ya. Cas. 34.
4 Martin v. Hunter, 1 Wheat. 304; Houston v. Moore« 5 Wheat. 1;
Steams v. U. S. 2 Paine, 300; Ex parte Knowles, 5 Cal. 300; Ely v. Peck,
7 Conn . 239 ; Davison v. ChanpUn, 7 Conn. 244 ; U.S. v. Lathrop, 17 Jobns.
4; State v. McBride, Bice, m-, Jackson v. Bose, 2 Ya. Cas. 34.
5 Ex parte Knowles, 5 Cal. 300.
Digitized by LaOOQ IC
209 JUDICIAL DEPABTMtfNT. ' Art. HI, $ I
6 Steams v. U. S. 2 Paine, 900 ; Ex parte Stephens, 70 Mass. 599 ; Miss.
RIv. Tel. Co. r. First Nat. Bank, 7 Cb. L. nT 158; The British Pris-
oners, 1 Wood. & M. 66.
7 Steams v. U. S. 2 Paine, 300 ; Mississippi Biv. Tel. Go. v. First Nat.
Bank, 7 Ch. L. N. 158; £x parte Stephens, tO Mass. 559.
8 Frigg V. Commonwealth, 16 Peters, 539; Ex parte Pool, 2 Va. Cas.
276.
9 ExparteMillIgan,4WaU.121.
10 Territorial Conrts-see Art. 4, Sec. 3, Snbd. 2.
11 £x parte Gist, 26 Ala. 166 ; Ex parte Pool, 216 Cas. 276.
Judicial power.— The Constitution defines the limits
of the judicial power, but Cou^ess prescribes how much
of it is to be exercised by the Federal courts.^ Judicial
power means that power with which courts are clothed
tor the purpose of the trial and determination of causes 2 —
the power conferred to render a judgment or decree.^ It is
not sufficient to bring a matter under the judicial power
that it involves the exercise of judgment upon law and
facts.*. The power to hear and pass upon the validity of a
claim in an ex parte proceeding is not a judicial power. ^
A provision requiring an assessor to impose a certain pen-
alty if he shall fin^ a return false does not confer judicial
power ;8 but administrative duties, the performance of
which involves an inquiry into the existence of facts, and
the application of them to the rules of law, is. in an en-
larged sense, a judicial act, as the adjustment of balances
and auditing of accounts."^ Judicial power is never exer-
cised for the purpose of giving effect to the will of the
judge, but always of the will ot the legislature, or of the
Iaw,s and must regard the Constitution as paramount.'^
The powers not bestowed upon the Federal courts by
legislative provisions remain obrmant until some law shall
call them into action by designating the particular tribu-
nal which shall be authorized to exercise them.^o The
distribution of powers is regulated and governed bv the
laws by which they are constituted.il llie object of this
provision was to establish a judiciarv of the United States
as a department of the Governments^ which cannot inter^
fere with the political department. is Neither the execu-
tive nor legislative department can be restricted by the
judicial, though the acts of both, when performed, are,
m proper cases, subject to its cognizance, i* The condition
of peace or war, public or civil, must be determined by
the political department, and not the judicial.i^ Whether
a foreign country has become an independent State is a
Suestion for the treaty-making power, and cannot be
ecided by the judiciary.i^ There is nothing in the Con-
stitution which prevents a ministerial officer, or person by-
Digitized by LaOOQ IC
•^Iit.ni,§.l JUDICIAL DEPABT3IEirr. ^0
law directed, to do an act necessflrv to briog tlie accused
before the court possessing Judicial power of determining
his guilt or innocence.^'' The General Qovernment has
full authority to appoint and commission all courts, mag-
istrates, and officers to carry out its laws.^^
1 Tomer v. Bank of N. A. 4 Dall. 10; Mclntyre v. Wood. 7 Cranch,
606; Kendall v. U. S. 12 Peters, 616; Carv v. Curtis, 3 How. 245; Clarke
p. City of Jonesvllle, 4 Amer. L. Beg. 593.
2 U. S. V. Arredoodo, 6 Peters, 691; Banton v. Wilson, 4 Tex. 400;
Ex parte Gist, 26 Ala. 156.
3 Bhode Island v. Massachnsetts, 12 Peters, 657.
4 U. S. V. Ferrelra, 13 How. 40; Murray v. Hoboken Ac. Co. 18 How.
272; Ex parte Gist, 26 Ala. 156.
5 U. S. V. Ferreira, 13 How. 40; U. S. v. Todd, 13 How. 52; Hampb-
teysp.U. S. lDev.204.
6 Doll V. Evans, 15 Int. Bev. Bee. 143.
7 Murray v. Hoboken Ac. Co. 18 How. 272.
8 Osbom V. Bank of U. S. 9 Wbeat. 818.
9 Harbury v. Madison, 1 Crancb. 178; Cobens v. Virginia, 6 Wbeat. 414.
10 Bank of U. S. v. Boberts, 4 Conn. 323; Bank of U. S. v. Northnm-
beriand Bank, 4 Con. 333.
11 Smltb V. Jackson, 1 Paine, 453; Mollat «. Soey , 2 Paine, 103; Shate
V. Davis, Peters C. C. 431.
12 Chisbolm v. Georgia, 2 Dall. 419; Osborne v. Bank of V. S. 9
Wbeat. 818.
13 Georgia v. Stanton, 6 Wall. 50; Loan Asso. v. Topeka, 20 WalL 669.
14 Mississippi V. Johnson, 4 Wall. 500, reviewing Marbnry v. Madison,
I Crancb, 137; Kendall v. Stokes, 12 Peters, 527.
15 U. S. V. Packages, II Am. Law Beg. 419.
' 16 Kennett v. Chambers, 14 How. 38; Gelston v. Hoyt, 3 WaH. 246;
Boee V. Hlmely, 4 Crancb, 241.
17 Prigg V. Comm. 16 Peters, 539; Ableman v. Bootb, 21 How. 806; Ex.
rarte l£i?tUi, 2 Paine, 348; Ex parte Gist, 26 Ala. 156; Ex parte Pool, 2
Va. Co. 276.
18 Ex parte Stephens, 70 Mass. 559
Jurisdiction.— The jurisdiction of the Supreme Court
is pointed out in the Constitution. ^ Its original jurisdic-
tion exists only in cases of ambassadors, etc., ana where
a State is a party. ^ Its appellate power is to be defined
by Congress. 8 It has no power to review by certiorari
proceedings of a military commission.^ The vesting of
judicial power is imperative. ^ The power to establish
courts and confer jurisdiction is unlimited. « Neither the
legislative nor executive branches can assign any duties
but such as are properly judicial, and to be performed in
a judicial manner.' Congress may say how much and
what shall vest in one inferior court and what inan-
other.B An inferior court is one whose judgment can be
Digitized by LaOOQ IC
211 JUDICIAL DBPARTMBNT. Alt. HI, § 1
rerersed on appeal.^ Their jurisdiction depends exclusive-
ly on the Constitution and the tenns of statutes passed in
pursuance thereof, ^^ or by treaty. ii The United States
courts can exercise only that jurisdiction conferred on
them by Congress. 12 They cannot exercise common-law
jurisdiction in criminal cases,^' nor proceed by informa-
tion in criminal cases unless the power is granted by Con-
gress. 1* They are of limited jurisdiction, but not inferior,
and can exercise no jurisdiction which is not expressly
granted or conferred by necessary implication, is as the
power to punish for contempt, i* Their respective juris-
dictions must be defined by Congress, i^ and cannot be
enlarged or restricted by State laws. ^s The Federal courts
have the right to determine their own jurisdiction, i*-* Con-
gress may consent to a second trial 01 a claim asainst the
United States, although a judgment thereon has oeen ren-
dered for the Government. 2<^ Congress has power to in-
vest inferior courts with power to issue writs of manda-
mus,2i but it cannot empower a commissioner to commit
a person for an alle^^ed contempt. ^^ The Federal courts
cannot apply the wnt of habeas corpus to one in jail unless
confined under and by authority of the United States ; ^8
and State courts have no authority to issue the writ within
the limits of the sovereignty of the United States. ^^ Fed-
eral courts have the power to issue writs only when neces-
sary in aid of their jurisdiction in a case pendiug.^^ Con-
gress may make provision for the appointment of a board
of land commissioners to settle private land claims. '^^^
1 Sraltli V. Jackson, 1 Paine, 463.
2 Martin v. Hunter, 1 Wheat. 304.
3 Holmes v, Jcnnison, 14 Fetors, 540 ; Decatur v. Paulding, 14 Peiers,
612.
4 Ex parte Vallandigham, 1 Wall. 243.
5 Martin v. Hunter, 1 Wheat. 32S; Anderson v. Dunn^ 6 Wheat. 214.
6 Mayor V. Cooper, 6 Wall. 251.
7 Hajrbam's Case. 2 Dall. 409 ; U. S. v. Ferreira, 13 How. 40; DoU v.
Evans, l5 Int. Bev. Bee. 143.
8 U. S. V. New Bedford Bridge, 1 Wood. A M. 437.
9 Nugent V. State, 18 Ala. 52.
10 Mossman v. Higgenson, 4 Dall. 12 ; Hodgson v. Bowerbank, 6
Cranch, 903; Bank of United States v. Devanx, Ibid. 61 ; Amer. Ins.
Co. V. Canter, 1 Peters, 611; Livingston v. Jeiferson, 1 Brock. 203; U. S.
V. Drenner, Hemp. 320; U. S. o. Alberti, Ibid. 444.
11 U. S. V. New Bedford Bridge, 1 Wood. & M. 437 ; The British Pris-
oners, 1 Wood, ^fc M. 66; Smith v. Jackson, 1 Paine, 468.
12 Ex parte Cabrera. 1 Wash. C. C. 236; Magill v. Parsons, 4 Conn.
325u
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Art. Ill, § 1 JUDICIAL DEPARTMEirr. 212
13 Ex parte Bollman, 4 Crancb, 75; U. S. v. Hudson, 7 Cranch, 32; XJ.
8. ». Coolldge, 1 Wheat. 416; 1 GalL 488: U. S. v. Bevans, 3 Wheat. 336.
Contra, U. S. r. Ravara. 2 DaU. 297; U. S. v. WorraU, 2 DaU. 384.
14 U. S. V. Joe, 4 Chic. L. N. 105.
15 Turner v. Bank of North America, 4 DaU. 9; U. S. v. TsUwan-ga-ca,
Hemp. 304.
16 Matt, of Meador, 1 Ahb. U. S-. 324; U. S. v. Hudson, 7 Crancb, 32.
17 . Osbom V. Bank of United States, 9 Wheat. 738; Turner v. Bank of
North America, 4 Dall. 10; Mclntyrev. Wood, 7 Crancb, 506; Kendall
v. United States, 12 Peters, 616; Cary v. Curtis, 3 How. 245; Sheldon v.
Sill, 8 How. 448.
18 Livingston v. Jefferson, 1 Brock. 203 ; U. S. v. Drennan, Hemp. 320^
Greely v. Townsend, 25 Cal. 604.
19 U. S. p. Peters, 5 Crancb, 115; U. S. v. Booth,21 How. 506; Freeman
t. Howe, 24 How. 459.
20 Nock r. U. S. 2 Ct. CI. 46L
21 Kendall v. U. S. 12 Peters, 524.
22 Ex parte Doll, 7 PbUa. 595.
23 Ex parte Des Bochers, McAll. 68.
24 Ableman v. Booth, 21 How. 506.
25 Ex parte Everts, 7 Am. Law R. 79, ovemillng U. S. v. Williamson,
4 Ibid. if.
26 U. S. v. Ritchie, 17 How. 525.
Territorial courts.— Congress may define the jurisdic-
tion of territorial courts, or delegate the authority to the
territorial government, i The jurisdiction with which ter-
ritorial courts are invested is not a part of that judicial
power defined in this article, but is conferred in the exe-
cution of those general powers which Congress possesses
over the Territories.^ Does not apply to the abnormal
condition of conquered territory, nor permit establish-
ment of courts in insurrectionary districts.* The Presi-
dent had power during the Civil War to establish provis-
ional courts, as an incident to the military occupation of
States which were the seat of war; ^ but such courts could
not decide cases of prize of war as ordinary courts of ad-
miralty. ^ On admitting a Territory into the Union, if
Congress fails to provide for cases pending in the supreme
court, it may do so by a subsequent act.^
1 Leitensdorf er v. Webb, 20 How. 176.
2 Amer. Ins. Co. v. Canter, 1 Peters, 511 ; Stacy v. Abbot, 1 Am. L. T.
S4. And see Benuer t7. Porter, 9 How. 244.
3 Mechs. Bank v. Union Bank, 23 Wall. 276; The Grapeshot, 9 Wall.
132.
4 The Grapeshot, 9 Wall. 132; Leitensdorf er v. Webb, 20 How. 176.
5 Jecker v. Montgomery, 13 How. 515.
6 Freeborn v. Smith, 2 Wall. 160.
Digitized by LaOOQ IC
213 JCDICIAL DEPABTMENT. Art III, § 1
Anthoritjr of State courts. — The jurisdiction of
State courts is not taken away except as to cases where
such jurisdiction would be incompatible with the powers
f ranted to the United States.^ Where Federal courts
ave paramount jurisdiction, State courts are expressly
prohibited from taking cognizance ; ^ so, a State statute
authorizing proceedings in rem for causes in admiralty
is unconstitutional.^ Congress cannot confer iurisdictlon
on a State tribunal.* The jurisdiction of the State is
co-extensive with the territory. ^ but a State legislature
cannot confer jurisdiction upon Federal courts, or pre-
scribe the means or mode of its exercise.^ No part of the
criminal jurisdiction can be delegated to State tribunals, "^
but a crime not made an offense by an act of Congress is
cognizable in a State court. ^ So, State courts ma^ punish
for counterfeiting under a State law, unless exclusive juris-
diction is vested in the Federal courts. ^ A State court
has jurisdiction to punish the forgery of a land warrant,
where it has not been made a crime by act of Congress. i<^
State courts may entertain an action to recover a penalty
for breach of a Federal statute. ^ A State magistrate may
commit a prisoner to be delivered over for prosecution to
the United States.12
1 Martin «. Hnnter, 1 Wbeat. 304; Houston v. Moore, 5 Wheat. 1: 3
Serg. & B. 160: Teal v. Felton, 12 How. 284; State v. Randall, 2 Aik. 89;
Delafield r. State, 2 Hill, 159; U. S. v. Latnrqp, 17 Johns. 4; Jackson v.
Rose, 2 Ya. Gas. 34; Glaflln v. Houseman, 93 If. S. 130.
2 In re Brinkman, 7 Bank. Beg. 426; Slocum v. Mayberry, 2 Wheat.
1; Osborn v. Bank of U. S. 9 Wheat. 738; U. S. v. Peters, 5 Cranch, 115:
Dancan v. Darst, 1 How. 301; McNutt v. Bland, 2 How. 16; Bank of
Augusta V. Earle, 13 Peters, 590.
3 Crawford v. The Caroline Beed. 42 Cal. 469: In re Brlnkman, 7
Bank. Beg. 426 ; Bird v. The Josepnine. 39 N. Y. 19 ; Brookman v.
HamiU, 43 N. Y. 554 ; The Belfast, 7 Wall. 624, overruling Bichardson v.
Cleveland, :> Port. 251 ; Monroe v. Brady, 7 Ala. 59; The Farmer v. Mc-
Craw, 31 Ala. 659; The Belfast, 41 Ala. 50.
4 Huber v. Belly, 63 Pa. St. 112.
5 U. S. V. Bevans, 3 Wheat. 386; Scott v. Sandford, 19 How. 610.
6. Greely V. Townsend, 25 CaL 604.
7 Marthiv. Hunter, 1 Wheat. 304; State v. Wells, 2 Hill, S. C. 687:
Huber v. Belly, 53 Pa. St. il2; State v. McBride, Bice, 400; Common-
wealth V. Feely, 1 Va. Cas. 321.
8 State.v. Buchanan, 5 Har. & J. 317.
9 White V. Commonwealth, 4 Binn. 418; State v. Bandall, 2 Ark. 89;
State V. Tutt, 2 Bailey, 44.
10 Commonwealth v. Schaffer, 4 Dall. App. 26.
li Claflin V. Houseman, 9317. S. 130; Steams v. U. S. 2 Paine, 300;
Buckwalter v. U. S. 11 Serg. & B. 193. But see Ely v. Peck, 7 Conn. 289;
Digitized by LaOOQ IC
-Art. HI, § 1 JUDICIAL. DEPABTMENT. 214
Daviclson V. Champlln, 7 Conn. 244; Haney v. Sharp, 1 Dana, 442; U. S.
r. Lathrop, 17 Johns. 4; Jackson v. Rose, 2 Va. Css. 34.
12 Prlgg V. Commonwealth, 16 Peters, 539; Ex parte 61st, 26 Ala. 156;
Ex parte Smith, 5 Cowen 273; Ex parte Martin, 2 Paine, 848; Ex parte
Pool, 2 Va. Cas. 276.
Removal of causes.— Congress may transfer a suit
from one inferior tribunal to another. ^ It may also
provide for the removal of causes from State to Federal
courts. 2 This power is only given by implication— it is the
indirect means by which Federal courts acquire jurisdic-
tion.8 A case may be removed from a State to a Federal
court where it arises under the Constitution and laws of •
the United States, as well as where it arises between citi-
zens of different States.* Congress may determine at
what time its power may be invoked, and at what stage
of the proceedmgs a trial may be removed to the Federal
courts.0 Ko State can take away the privilege conferred
upon citizens of other States to sue in the Federal courts,
by providing a special remedy in its own courts.^ Parties
cannot by agreement oust jurisdiction in the Federal
judiciary.' A statute requiring an agreement from a
foreign corporation not to remove a cause, is void: 8 but
if a license to transact business in a State is made to de-
pend on the condition that the corporation shall not
remove any case from a State to a Federal court, the State
may revoke it if such removal is made.^
1 Stuart V. Laird, 1 Grancb, 299.
2 Martin v. Hunter, 1 Wheat. 364; Mayor v. CooperiJ WaU. 247 ; Ball-
road Co. v. Whitton. 13 Wall. 270; Murray v. Patrle, 9 Blatchf. 343; Fisk
V. N. P. R. R. Co. Blatchf. 362; Clark v. Dick, 1 DIU. 8; Johnson r.
Monell, Woolw. 390; McCoi-mlck v. Humphrey, 27 Ind. 144; Tod. v. Fair-
field, 15 Ohio St. 377; Hodgson v. MiUward, 3 Grant, 412; Kolp v. Blck-
etts, 3 Grant. 420; Greely v. Townseud, 25 CaL 604.
3 Railroad Co. v. Whitton, 13 Wall. 270; Martin p. Hnnter, 1 Wlieat
304.
4 Kulp V. Ricketts, 3 Grant, 420.
5 Gaines v, Fuentes, 92 U. S. 10.
6 Mason v. Boom Comp. 3 Wall. Jr. 262.
7 Davis V. Packard, 6 Peters, 41; 7 Ibid. 276: Duc«t v. Chicago, 10
Wall. 415; Cobb v. N. E. Ins. Co. 6 Gray, 192; Hobbs 7. Maohattaa uis.
Co. 56 Me. 421.
8 Morse v. Ins. Co. 20 Widl. 445; 30 WU. 496; Railroad Co. «. Pierce.
27 Ohio St. 155; Doyle v. Continental Ins. Co. 94 U. S. 535; Hartfora
F. Ins. Co. V. Doyle, 6 Blss. 463. But see Cont. Ins. Co. v. Kasey, 13 A.
L. J. 311; N. Y. Life Ins. Co. r. Best, 23 Ohio St. 105.
9 State V. Doyle, 40 Wis. 175; Doyle v. Continental Ins. Co. 15 A. L.
J. 267. Bat see Hartford F. Ins. Co. v. Doyle, 6 Biss. 461.
Digitized by LaOOQ IC
215 JURISDICTION. Art. HI, g 2
Judges, tenure of office.— Congress cannot limit the
tenure of judicial offices, or diminish the compensation,
or alter the stated time for payment.^ Judges of courts
established by Congress must be appointed to hold office
daring good behavior.^ The fees allowed to justices of
the peace in the District of Columbia cannot be dimin-
ished during their continuance in office.^ Territorial
courts being erected in the exercise of the general sover-
eignty of the United States over territory it may own,
their judges may be appointed for brief terms. ^ This
clause prohibits the imposition of a tax on the salary of
a judge.fi Judges cannot be required to perform any but
judicial functions. <^
1 Kartln v. Hunter, 1 Wheat. 304.
2 ffitybam's Case, 2 DaU. 410, note; U. S. r. Ferreira, 13 How. 49;
U. S. ». Todd, 13 How. 52,
3 IT. S. V. More, 3 Crancb, 160, note.
4 Amer. Ins. Go. v. Canter, 1 Peters, 546.
5 Commonwealth v. Mann, 5 Watts & S. 415.
6 Haylmm's Case, 2 Dall. 410, note; U. S. v. Todd, 13 How. 52, note;
U. S. r. ferreira, 13 How. 43.
SxcTioir 2.
Judicial potters.
1. Jurisdiction of Courts.
2. Of Supreme Court, original and appellate.
3. Jury trials, place of trial.
Sec. 2. 1 The judicial power shall extend to all cases, in
law and equity, arising under this Constitution, the laws of
the United States, and treaties made, or which shall be made,
under their authority ; — to all cases affecting ambassadors,
other public ministers, and consuls ; — to all cases of admi-
raity and maritime jurisdiction ; — to controversies to which
the United States shall be a party ;—to controversies between
two or more States ; — between a State and citizens of another
State ;—betioeen citizens of different States ;— between citizens
of the same State claiming lands under grants of different
States, and between a State, or the citizens thereof, and for-
eign states, citizens or subjects.
Jurisdiction. — ** Shall extend" is used in an impera-
tive sense, and imports an absolute grant of power, i
There are three classes of cases enumerated. In the lat-
ter class as to controversies, Congress may qualify the ju-
risdiction, either original or appellate. ^ How jurisdiction
shall be acquired, whether original or appellate, and the
mode of procedure, are left to the wisdom of the legisla-
Digitized by LaOOQ IC
Art. m, § 2 JURISDICTION. 216
tore ; 8 so, Confess may giy^ the Federal courts original ju-
risdiction in any case to which appellate jurisdiction ex-
ends;* and may lawfully provide for suits, at the op-
tion of the partieSfOn all controversies between citizens
of the different States. ^ When a question within the ju-
dicial power becomes an ingredient of the cause, Congress
may give the Federal courts jurisdiction.^^ The questions
which the case involves must determine its character.^
Congress may provide that a national bank may sue and
be sued in the national courts. 8 The judicial power is the
instrument provided in administering security to an offi-
cer acting in discharge of his duty.^ It covers every leg-
islative act of Congress.!* It is the final arbiter of con-
stitutional construction, 11 and may receive from the leg-
islature the power to construe every constitutional law.^
For the judicial power to extend to a violation of the
Constitution, it must be "a case in law or in equity" in
which a right under such law is asserted in a court of
iustice.18 Seeking protection under a law is a case aris-
mg under that law." The judicial power is unavoidably
In some cases exclusive of all State authority, and in
others may be made so at the election of the legislative
body .15 The jurisdiction of the Federal courts in the first
three classes of cases in this section is exclusive; ^^ so as
to questions arising on treaties, when not political ques-
tions. i7 Congress may grant exclusive lurisdiction in
United States courts over suits arising under the laws of
the United States, is
1 Martin v. Hunter, 1 Wheat. 304.
2 Martin v. Hunter, 1 Wheat. 304 ; The Moses Taylor. 4 Wall. 411.
3 Mayor r. Cooper, 6 WaU. 247.
4 Osbom V. Bank of U. S. 9 Wheat. 738.
5 Gaines v. Fuentes, 92 U. S. 10.
6 Osbom V. Bank of U. S. 9 Wheat. 738; Mayor v. Ck>oper, 6 WalL 247.
7 Osbom V. Bank of U. S. 9 Wheat. 738.
8 Osbom V. Bank of U. 8. 9 Wheat. 738: Bank of U. S. v. Northum-
berland Bank, 4 Wash. G. C. 108; 4 Conn. 333; MagiU v. Parsons, 4 Conn.
817; Bank of XJ. S. v. Roberts, 4 Conn. 323.
9 Hodgson t>. Millward, 3 Grant, 412.
10 Ableman v. Booth, 21 How. 606; 3 Wis. 1; Mayor v. Cooper, 6
WaU. 247.
11 Yandome's Lessee v. Dorrance,2 Dall.304; Martin v. Hunter,. 1
Wheat. 804; Cohens v. Virginia, 6 Wheat. 264; Ableman v. Booth, 21
How. 606; 3W1S. 1.
12 Osbome v. Bank of U. S. 9 Wheat. 738; Bank of U. S. v. Boberts,
4 Conn. 323; Hodgson v. Millward, 3 Grant, 412.
13 Cohens «. Virginia, 6 Wheat. 264.
14 Hodgson v. Millward. 3 Grant. 412 ; Kulp v. Bicketts, Ibid. 430.
Digitized by LaOOQ IC
217 juBisDicTioK. Art. HI, § 2
19 Martin v. Hunter, 1 Wbeat. 304; The Moses Taylor, 4 WalL 411.
16 State v.McBride, Bice, 400.
17 Wilson t). Wall, 6 WaU. 83; Ex parte Leon, 1 Edm. SeL Cas. 301;
U. S. V. Lathrop, 17 Johns. 9; u. S. v. Campbell, 6 Hall L. J. 113; Haney
V. Sharp, 1 Dana, 442.
18 Fox V. Ohio, 5 How. 410: Yoorhees v. Frishie, 8 Bank. Beg. 154.
ZSztent of judicial power .~A case in law or eqaity
consists of the right of one party as well as of the other,
and it arises when its correct decision depends on the
construction of the Constitution or laws oi the United
States.^ It is a suit instituted according to the regular
course of judicial procedure ;3 it is limited to such as are
between parties, or are of a judicial nature,^ and does qpt
include political questions.^ Wlien the subject-matter of
a controversy is political, it is beyond the domain of the
judiciary, as where it involves the existence dejvre of the
Government, or the legality of. some act or proceeding
purely governmental. ^ Cases at law include suits in
which leeal rights are to be ascertained and determined as
distinguished from those where equitable rights are ad-
ministered, <^ or where the proceeding is in admiralty; ^
but a case can only be considered when the subject-matter
is submitted in the form prescribed by law,8 and the
record must show that the Constitution or some law or
treaty is drawn in question.* The United States courts
have no jurisdiction of offenses at common law.i<> Suits
in which relief is sought according to the principles and
practice of equity jurisdiction are " cases in equity." ^i
The true test is whether there is a plain, adequate, and
complete remedy at law in the same court.12 it extends
over cases in State courts, and over statutes whether
passed by a State legislature or by Congress, and which
are claimed to be in contravention of the Constitution of
the United States, 18 but not to statutes claimed to be void
under a State constitution.^* To bring an act within the
control of the judiciary, it must be clearly subversive of
the Constitution, ifi The objection must not be doubtful, i«
but a clear violation of the Constitution, i^ The question
as to the title to property conferred by treaty is a political
question, and its decision by the political department is
conclusive on the judiciary;^* so, the protection of Indians
in their possessions,!* and as to State boundaries, 20 and
as to political treaties,^! and as to the recognition of f or-
e^ governments, are political questions.^ The recog<
nition of the existence of a government is conclusive of
its public character.28 The jurisdiction extends to all
cases affecting ambassadors, etc., although they are not
Desty Fed. Con .— lO
Digitized by C^OOQ IC
partieg to the record.^ If the right of property in tbe
subject-matter is giren or created by an act of -Ooasreas,
jyb is within the judicial power of the United Staftes,*^ but
State courts- 2nay entertain jurisdiction of cases arising
under the laws of the United States upon principles ot
comity, which authorize the courts of every clTilize^ State
to administer law and justice to suitors .^^ Congress -may
give the circuit courts original jurisdiction in any case to
which the appellate jurisdiction attaches.^7
I Cohens v. Virginia, 6 Wlieat. 379; U. S. v. Williams, 4 GnaLch C. C.
tn/2; Osbom v. Bank of United States, 9 Wheat. 738; Jones r. Seward,
41 aiarh. 272; £x parte Milligan, 4 W^. 114.
i2 Marbnry v. Madison, 1 Granch. 138; Owlngs v, Norwood, 5 Oranch,
Wa Ittactin V. Hunter, 1 Wheat. 304; Cohens v. Yixgtnia, 6 Wheat. 264.
9 Xnther v. Borden, 7 How. 1 ; U. S. v. Feireiia, 13 How. 40.
4 Luther v. Borden, 7 How. 1.
5 Georgia v. Stanton, 6 Wall. 50.
6 Parsons v. Bedford, 3 Peters, 447: Fenn v. Holme, 21 How. 486;
And see Stroth6r v. Lucas, 6 Peters, 768: Parish v. Ellis, 16 Peters, 453:
Bennett v. Butterworth, 11 How. 669; Sherboume v. Be Cordova, 24
How. 423.
7 Parsons v. Bedford, 3 Peters, 447; Bobinson v. Campbell, 8 "Wlieat.
212.
8 Bobinson v. Campbell, 3 Wheat. 212; Osbom v. Bank of United
States, 9 Wheat. 738; Parsons v, Bedford, 3 Peters, 433.
9 Lawler v. Walker, 14 How. 149; Mills v. Brown, 16 Peters, .635;
Railroad Co. t7. Bock, 4 Wall. 180; Byan v. Thomas. 4 Wall. 603.
10 Ex parte Bollman, 4 Cranch. 75; Turner v. Bank of K. A. 4 DaU. 10;
U. S. V. Lancaster, 2 McLean, 431; Kitchen v. Strawbridge, 1 Wash. C.
C. 84; U. S. V. New Bedford Bridge, 1 Wood. & M. 401.
II Bobinson v. Campbell, 3 Wheat. 212; U. S. v. Rowland, 4 Wheat.
106; Lorman v. Clark, 2 McLean, 568; Gordon v. Hobart, 2 Sum. 401
Pratt V. Northam, 5 Mason, 95; Cropper v. Cobum, 2 Curt. 465.
12 U. S. V. Rowland, 4 Wheat. 108; Boyce ». Grundy, 3 Peters, 215;
Gaines v. Chew, 2 How. 619; Williams v. Benedict, 8 How. 107.
13 Calder v. Bull, 3 Ball. 399; Marbury v. Madison, 1 Gntnoh, 137:
Dartmouth College v. Woodward, 4 Wheat. 625.
14 Calder 9. BuU, 3 DaU. 392.
15 Turner v. Althaus, 6 Neb. 54.
16 U. S. V. Jackson, 3 Sawy. 62; People v. Brinkerhoff, 68 N. Y. 259.
17 C. C. B. B. Co. V. Twenty-third St. B. B. Co. 54 How. Pr. 168; Ben-
nington r. Park, 60 Vt. 178.
18 Foster V. Nellson, 2 Peters, 309; U. S. v. Arredondo, 6 Peters, 711;
Garcia v. Lee, 12 Peters, 520; Williamson v. Suffolk Ins. Co. 13 Peters,
441 ; Luther v. Borden, 7 How. 56.
19 Cherokee Nation v. Georgia, 5 Peters, 20.
20 Bhode Island v. Massachusetts, 12 Peters, 736; Garcia v. Lee,
Ibid. 520.
21 Luther v. Borden, 7 How. 56.
Digitized by LaOOQ IC
219 JURISDICTION. Art. Hit 9 9
32 WnUanuon v. Suffolk Ins. Co. 13 Peters, 419; Gberokee Nu v.
Geo|«da, 5Feters,20; Rose v. Himely, 4 Granch, 24I4 F. S. v. Patmer, 3
"Wli^OlO; Oeiston v. Hoyt, Ibid. 246; The DivinaPastora, 4 Wheat; gC
23 Da Pont V. PIchou, 4 Dall. 321 ; U. S. v. Ortega, 4 Wash. G. C. 591;
24 Osbom V. Bank of U. S. 9 Wheat. 738; U. S. v. Ortega, 11 Wheat.
4«7 ; U. S. V. Bavara, 2 Dall. 297.
25 Bacnlc of U. S. v. Roberts, 4 Gonn. 323.
26 Houston V. Mooce, 5 Wheat. 1; 3 Serg. & R. 169; Glaflln v. House-
man, 98 U. a. 130; Bank of U. S. v. Roberts, 4 Gonn. 323; Jacksdn v.
Rose, 2 Ya. Gas. 34.
27 U. S. V. Bevans, 3 Wheat. 836; Osbom v. Bank of U. 8*. 9 Wheat.
821; Jones t. Seward, 41 Barb. 272.
As to persons.— The judicial power extends to con-
troversies to which the United States shall be a party,
embracing civil suits, but not to suits against the execu-
tive to prevent the enforcement of reconstruction laws.i
It extends to suits where a State is a party,^ but only
when it is a party to the record,^ and process is served on
the chief executive and attorney-general of the State :*
or when the governor is sued in his official capacity .^ It
extends to controversies between two or more States,^
including suits to settle disputed boundaries,"^ and it only
applies to States that are members of the Union, and to
pnolic bodies owing obedience and conformity to its con-
stitution and laws, 8 Indian nations not being deemed
States.® It extends to controversies between a State and
citizens of other States, but this does not include a suit
by the citizens against the State.i<^ It extends to contro-
versies between citizens of different States ;ii the situation
of the parties, and not their characters, determines the
jurisdiction.i2 Citizenship, as to jurisdiction, means only
residence, 18 and for this purpose a corporation is deemed
a citizen of the State which charters it.i* This clause
does not embrace cases where one of the parties is a citi-
zen of a Territory, or of the District of Columbia, i^ Con-
troversies between citizens claiming lands under grants
of different States are within the jurisdiction, notwith-
standing one of the States, at the time of the iirst grant,
was a part of the other. !« It is the grant which passes
the legal title and authorizes jurisdiction, i^ This clause
gives jurisdiction where foreign States or individual for-
eigners are parties, is but an Indian tribe is not a foreign
nation within this provision, i® The controversy, in order
to give jurisdiction, must be one in which a citizen of a.
State and an alien are partie8,2o or a nominal citizen
suing for the use of an alien.21 So, a foreign corporation
is an alien.23 The opposing party must be a citizen, ana
it must so appear on the record.23 At common law, an
Digitized by LaOOQ IC
Art. Ill, § 2 JURISDICTION. 220
alien cannot maintain a real action ;24 the disability is
per8onal.25 This section does not include controversies
between people of a State as to the formation or change
of their constitution. 26
1 Mississippi V. Jolmson, 4 Wall. 498; Georgia v. Stanton, 6 Wan. 50.
2 N. T. V. Conn. 4 Dall. 1; N. J. v. N. Y. 5 Peters, 290; Georgia ».
BraUsford, 2 Dall. 402, 415; Oswald v. N. Y. 2 DaU. 415: Chisholm v.
Georgia, 2 Dall. 419; Grayson v. Va. 3 Dall. 320; Mass. v. B. 1. 12 Peters,
755; Gov. of Ga. v. Madrazo, 1 Peters, 122; Lather v. Borden, 7 How.
55; Mowrey v. Indiana & C. B. B. Co. 4 Biss. 80.
. 3 Osbom V. Bank of U. S. 9 Wheat. 738; N. Y. v. Conn. 4 I>aIL 3;
Fowler v. Lindsay, 3 Dall. 411 ; U. S. v. Peters, 5 Cranch, 115.
4 Georgia v. Brallsford, 2 Dall. 402; 3 Dall. 1 : Oswald v. New York, 2
DaU. 415; Chisholm v. Ga. 2 Dall. 419; N. J. t;. N. Y. 5 Peters, 284; Gray-
son V. Virginia, 3 Dall. 320; Kentucky v. Ohio, 24 How. 96.
5 Kentucky v. Ohio, 24 How. 97; Gov. of Georgia v. Madrazo, 1
Peters, 110.
6 Osbom V. Bank of XX. S. 9 Wheat. 738; Dundas v. Bowler, 3 Mo-
Lean, 204.
7 B. I. V. Mass. 12 Peters, 657; Ala. v. Ga. 23 How. 510; Brainard v.
Williams, 4 McLean, 122.
8 Scott V. Jones, 5 How. 377.
9 Cherokee Nation v. Ga. 5 Peters, 16.
10 Cohens t7. Va. 6 Wheat. 406. See Post, Xlth Amend., Note.
11 Ohio & Miss. B. B. Co. v. Wheeler, 1 Black, 286. But see Hope Ins.
Go. V. Boardman, 5 Cranch, 57.
12 Connolly ». Taylor, 2 Peters, 556.
13 Gassles v. Ballon, 6 Peters, 761 ; Shelton v. Tilfin, 6 How. 163; Les-
see of Cooper v. Galbraith, 3 Wash. C. C. 546; Lessee of Butler v,
Famsworth. 4 Ibid. 101.
14 Hope Ins. Co. V. BoardmaUfS Cranch, 57; IT. S. v. Planters' Bank,
9 Wheat. 410; Louisville- &c. B. B. Co. v. Letson, 2 How. 497: Cumber-
land Ac. Bank v. Slocomb, 14 Peters, 60; Marshall v. Bait. &o. E. R. Co.
16 How. 314; Wheeden v. Camden &c. B. B. Co. 4 Am. L. B. 296; Bank
of U. S. V. Devaux, 5 Cranch, 61.
15 Hepburn v. Ellzey , 2 Cranch, 445 ; New Orleans v. WinteFil Wheat.
91; Gassles v. Ballon, 6 Peters, 761; Hartshome v. Wright, Peters C.
0. 64; Scott V. Jones, 5 How. 376; Barney v. Baltimore, 6 WalL 287;
Texas v. White, 7 Wall. 737 ; BaUroad Co. v. Harris, 12 Wall. 86.
16 Town of Pawlet v. Clark, 9 Cranch, 292.
17 Colson V. Lewis, 2 Wheat. 377.
18 Chappedelaine v. Dechenaux, 4 Cranch, 308; Brown v. Strode, 9
Cranch, 303.
19 Cherokee Nation v. Ga. 5 Peters, 1 ; Worcester v. Ga. 6 peters, 619.
20 Hepburn V. Ellzey, 2 Cranch, 445; New Orleans t>. Winter, 1 Wheat.
91; Gassies v. Ballon, 6 Peters, 761: Brown v. Beene, 8 Peters, 112;
Picquet V. Swan, 4 Mason, 443; 5 Ibid. 3.5; Case v. Clarke, 1) Mason, 70;
Wilson «. City Bank, 5 Bank. Beg. 270: Catlett v. Pac. Ins. Go. 1 Paine,
594; Lessee or Cooper v. Galbraith, 3 Wash. C. C. 546; Prentiss v. Bren-
nan, 2 Blatchf. 164; Chappedelaine v. Dechenaux, 4 Crancb, 306.
21 Brown v. Strode, 5 Cranch, 303.
Digitized by CiOOQlC
221 JURBBDICTION. Art.in,§.2
22 Society for Prop, of Gosp. v. N. H. 8 Wheat. 464 ; Comml. &'c. Bank
V. Slocomb, 14 Peters, 60.
23 Jackson v. Twentymen, 2 Peters, 136 ; Baird v. Byrne, 3 WaU. Jr. 1.
24 Jones t>. McMasters, 20 How. 20: Lanfear v. Hunley, 4 Wall. 209;
McDonogh v. Mlllandon, 3 How. 693 : Semple v. Hager. 4 Wall. 433 ;
Baa^es v. Hogg, 1 Hayw. 435; Orser v. Hoag, 3 Hill, 79; Wlilte v, Sabar-
iego,28Tex.m
25 Kemp v. Kennedy, 5 Cranch, 173 ; Peters G. G. 40.
26 Lutber c. Borden, 7 How. 55; Mass. v. R. 1. 12 Peters, 755;
Admiralty and maritiine. — The GonstitutioD confers
not only admiralty, but all "maritime" jurisdiction. i
" Maritime" was added to guard against a narrow inter-
pretation of the word " admiralty.'^a These words refer
to the general system of maritime law familiar to this
country when the Constitution was adopted,* and regard
must be had to our legal history, Constitution, legislation,
usages, and adjudications.^ The grant was not intended
to be limited to cases of admiralty jurisdiction in England
when the Constitution was adopted. ^ The maritime law
is a part of the common law.o The term belongs to the
law of nations as well as to domestic and municipal law.'*'
The jurisdiction is entirely distinct from the power of
Congress to regulate commerce. » It makes the judicial
co-extensive with the legislative power,^ and covers not
merely the cognizance of the case, but the jurisprudence
and principles by which it is administered. ^^ Tne whole
subject belongs exclusively to the General Government,^!
and jurisdiction in the Federal courts is exclusive. ^2
Jurisdiction in admiralty is expressly granted by the
Constitution, ^9 but its exercise depends on congressional
legislation,!^ and Congress may limit or control it, is or
modify the practice. !« The term includes jurisdiction of
all things done upon and relating to the sea, and all
transactions relating to commerce and navigation, and to
damages or injuries upon the high seas,!? and to the navi-
gable lakes and rivers of the United States, !» and to inland
navigable waters, although not affected by the ebb and
flow of the tide ; !^ but the grant does not extend to waters
ceded to the several States, nor to the general jurisdiction
over the same;'''^ so, the power to regulate the fisheries
was not surrendered by the grant of admiralty and mari-
time jurisdiction. 21
1 De Lovio v. Bolt, 20ftll. 398. And see The Seneca, GUp. 28 ; The
Hantress, 2 Ware (Day.) 82; The S. C. Ives, Newb. 205.
2 Fretz v. Bull, 12 How. 466; The Hlne v. Trevor, 4 Wall. 555, 661 ; The
Hoses Taylor, 4 Wall. 411.
3 N. J. S. N. Go. r. Merch. Bank, 6 How. 344: Waring v. Clarke, 5
How. 441; The Genessee Chief v. Fltzhugh. 12 How. 443; The Lotta-
wanna, 21 Wall. 558; The Huntress, 2 Wary (Dav.) 83.
Digitized by LaOOQ IC
▲rt. m, § 2 JURISDICTION. 222
4 The St. Lawrence, 1 Black, 522 ; The Lottawaima, 21 WalL 076.
5 New Jersey Co. v. Merch. Bank. 6 How. 344; Waring r. Clarke, 5
I Sum. 551.
6 Thompson v. The Gatharina, 1 Pet. Adm. 104.
7 The Huntress, 2 Ware (Dav.) 82.
8 The.Oeness«e Chief v. Fitxfangh. 12 How. 443 ; The Belfast, 7 WaU.
624; The Sarah Jane, 1 Low. 203.
9 TheHuntre83,2Ware(Dav.)82.
10 The Chosan, 2 Story, 455.
11 The Chosan, 2 Story, 455.
12 Martin v. Hunter, 1 Wheat. 304; Amer. Ins. Co. v. Canterjl Peters,
611; The Moses Taylor, 4 Wall. 411; The Hlne v. Trevor, 4 WaU. 555;
The Wave, Blatchf . & H. 252.
13 Carpenter v. The Emma Johnson, 1 Cliff. 633.
14 U. S. V. Bevans, 3 Wheat. 337; Jackson r. The Magnolia, 20 How.
2S6.
15 Carpenter r. The Emma Johnson, 1 Cliff. 633.
16 The Genessee Chief v. Fitzhngh, 12 How. 443.
17 I>e Lovio v. Bolt, 2 Gall. 398; The Young America, Newb. 101.
18 The Genessee Chief v. Fltzhugh, 12 How. 451.
19 The Genessee Chief v. Fltzhugh, 12 How. 451.
20 U. S. V. Bevans, 3 Wheat. 337 ; Smith v. Maryland, 18 How. 71 ; The
Wave, 2 Paine, 131; Blatchf. & H. 235; Genessee Chief v. Fltzhugh, 12
How. 443.
21 Smith V. Maryland, 18 How. 71; Bennett v. Boggs, Bald. 60; Cor-
aeld V. CoryeU,4 Wash. C. C. 371.
Maritime contracts.— Admiralty and maritime juris-
diction embraces all maritime contracts, all torts commit'
ted in its jurisdiction,! and all suits for liens of material-
men and for services.^ States cannot create maritime
liens nor give their courts jurisdiction over them.8 It
extends over contracts, though the voyage is within the
State and only on waters of the State;* and over torts on
navigable waters, though committed within the body of
a county ;S and over seizures for breach of revenue laws;^
or for engaging in the Rebellion; " and for all crimes and
offenses against the laws of the United States.^ In cases
purely dependent on locality it is limited to the sea. and
to tide- waters as far as tlie tide flows, and up to high-
water mark.9 It includes captures made jwre helli upon
certain waters, and all questions of prize, crimes, and of-
fenses upon the same; civil acts, torts, and injuries com-
mitted thereon, collisions, illegal seizures, depredations on
property, and salvage, and other services. i^* States can-
not by local legislation enlarge or limit the jurisdiction
db^ Google
•223 jUBiSDicnoN. Alt. 1X1, § 2
of the Federal Courts; 11 nor confer jurisdiction on them
in oases not cognizable in admiralty .^^
1 New York v. Connecticut, 4 Dall. 1: Waring v. Clarke, 5 How. 489;
Gloucester Ins. Co. r. Younger, 2 Curt. 322 ; De Lovlo v. Bolt, 3 Gall. 396.
2 The General 8mlth, 4 Wheat. 433 ; Gardner v. New Jersey, 1 Peters,
227; Stevens v. The Sandwich, Ibid. 233; Davis v. A New Brig, GUp. 473;
Wick r. The Samuel Strong, 6 McLean, 687 ; The Bobert Fulton, I Paine,
630; Zane p. The President, 4 Wash. C. C. 453.
3 The Belfast, 7 Wall. 624.
4 The Belfast, 7 Wall. fi24; The Mary Washington, 1 Abb. U. S. 1;
The Leonard, 3 Ben. 2(>3; Carpenter «. The Emma Johnson, 1 Cliff. 633;
The Yoluuteer, 1 Ch. L. N. 185; The Sarah Jane, I Low. 20. But see,
contra, Magulre v. Card. 21 How. 243; Allen v. Newberry, 21 How. 244;
New Jersey Co. v. Merchants' Bank, 6 How. 344; The Troy, 4 Blatchf.
3».
5 Boberts v. Skolfleld, 8 Am. Law Beg. 156.
6 U. S. V. I*a Vengeance, 3 Dall. 297 : U. S. v. The Sally, 2 Cranch, 406;
N. J. 8. N. Co. V. Merchants' Bank, 6 How. 344.
7 Mrs. Alexander's Cotton, 2 WaU. 404.
8 Corfield v. Coryell, 4 Wash. C. C. 371 ; U. S. r. Bevans, 3 Wheat. 337.
9 U. S. V. Coombs, 12 Peters, 72.
10 Martin v. Hunter, 1 Wheat. 304; U. S. v. McGill. 4 Dall. 436; I Wash.
C. C. m: The Plymouth, 3 Wall. 20; Thomas v. Lane, 2 Sum. 9; Plum-
mer v. Webb, 4 mason, 380; The Huntress, 2 Ware (Dav.) 85.
11 -pio Belfast, 7 WaU. 624 ; The Chusan, 2 Story, 455.
12 Crawford v. The Caroline Beed, 42 Cal. 460.
2/» all cases affecting Ambassadors, other public Ministers
and Consuls J and those in which a State shall be party, the
Supreme Court shall have orif/inal jurisdiction. In all the
other cases before mentioned, the Supreme Court shall have
appellate jurisdiction, both as to law and fact, with such ex-
ceptions and under such regulations as the Congress shall
make.
Original jnriBdiction. — The first clause of this pro-
vision declares the extent of the judicial power.i which
Congress cannot abridge or extend ;2 nor can Congress
confer original jurisdiction in cases other than those enu-
merated.8 The jurisdiction of the Supreme Court is both
original and exclusive,* and co-extensive with the judicial
power,6 but special and limited, confined to particular
cases, controversies, and parties.^ It has no jurisdiction
over questions of a political character."^ In the absence
of legislation by Congress, the Court may prescribe the
mode and form of proceedings, so as to attain the object
for which jurisdiction was given.s It is left to Congress
to organize the Supreme Court, to define its powers con-
sistently with the Constitution, and to distribute the resi-
Digitized.by LaOOQ IC
Art. m, §2 JURISDICTION. 224
due between it and the inferior courts.^ Although the
Constitution vests in the Supreme Court jurisdiction in
suits affecting ambassadors, ministers, and consuls. Con-
gress may vest a concurrent jurisdiction in such inferior
courts as may be established. i<* A State court has no
jurisdiction over an offense committed by a consul ;ii but
an indictment against a private person for an assault upon
an ambassador or public minister is not a case affecting
such minister. 12 xhe original jurisdiction, in cases where
a State is a party, refers to cases where jurisdiction might
be exercised by reason of the character of the party in
any suit in a Federal court, i^* and it must be a case wner6
the State is nominally a party, and 'substantially af-
fected, i* a party to the record,!^ or if it has a direct
interest in the controversy, i® where disputes and contro-
versies arise between the respective States, ^^ as on ques-
tions of boundaries. 18 A State may bring an original suit
against a citizen of another State, but not against one of
her own,i9 though a State may be authorized to sue in the
inferior courts.^ Where the State is a party, it may be
represented by the governor. 2i The Supreme Court has
no jurisdiction in a case where a State is enforcing its
penal laws, 22 nor in a proceeding by an alien against a
citizen.22
1 Pennsylvania v. Quicksilver Co. 10 Wall. 653: Delafield v. State, 2
HIU, 163.
2 Marbtiry c Madison, 1 Cranch. 137; EX parte Yallandlgham, 1
Wall. 252 ; Ex parte Yerger, 8 WaU. 98.
3 Matt, of Metzger, 5 How. 176 ; In re Kaine, 14 How. 103 : 3 Blatchf . 1 .
4 U. S. V. Ortega, 11 Wheat. 467; Houston v. Moore, .5 Wheat. 1;
Marbury t;. Madison, 1 Cranch, 137: Osbom v. Banlt of U. S. 9 Wheat.
738. But see U. S. v. Ravara» 2 Dall. 2J)7; Chisholm v. Georgia, 2 Dall.
419; The Exchange v. McFaddin, 7 Cranch, 116.
6 Osbom V. Bank of U. S. 9 Wheat. 738.
6 Ehode Island v. ]Massachusetts, 12 Peters, 667.
7 Cherokee Nation v. Georgia, 5 Peters, 1 ; State v. Stanton, 6 WalL 60.
8 Florida v. Georgia, 17 How. 478.
9 M?irtln v. Hunter, 1 Wheat. 804; Cohens v. Virginia, 6 Wheat. 264;
Osbom V. Bank of U. S. 9 Wheat. 738; Chisholm v. Georgia, 2 Dall. 419;
Rhode Island v. Massachusetts, 12 Peters, 657.
10 U. S. V. Ravara, 2 Dall. 297; St. Luke's Hospital v. Barclay, 3
Blatchf. 269; Grahani v. Stucken, 4 Blatchf. 60; Gittlngs v. Crawford,
Taney, 1. But see Davis v. Packard, 6 Peters, 41; Mannhardtv. Sou-
derstrom, 1 Binn. 138; Griffin v. Dominguez, 2 Duer, 666; Commou-
wealth V. Koslofl, 6 Serg. & R. 546.
11 Commonwealth v. Kosloff, 6 Serg. & R. 545.
12 U. S. V. Ortega, 11 Wheat. 467.
13 Cohens v. Virginia, 6 Wheat. 264.
Digitized by LaOOQ IC
225 JUBISDICTION. Art. HI, § 2
14 Fowler V. Lindsey. 3 Dall. 411 ; New Jersey v. New York, 5 Peters,
287; Cherokee Na. ». Georgia. 5 Peters, 1 : Ex parte Madrazo, 7 Peters,
627; Bbode Island v. Massachusetts, 12 Peters, 657; Pennsylvania «.
Wheeling &c. Br. 18 How. 421.
15 Bank of XT. S. v. Planters' Bank, 9 Wheat. 904.
16 Pennsylvania v. Wheeling 4fcc. Br. 9 How. 647; 13 How. 518.
17 Chancely v. Bailey, 37 Qa. 532.
18 Rhode Island v. Massachusetts, 12 Peters, 657: Florida v. Georgia,
17 How. 478: Virginia v. West Virginia, 11 Wall. 39; New York v, Con-
necticut, 4 DallJ.
19 Pennsylvania v. Quicksilver Co. 10 Wall. 653; Cohens v. Virginia, 6
Wheat. 264«
20 State V. Atkins, 35 Ga. 315. Contra, State v. Trustees, 5 Bank Beg.
466; \ Hughes, 133.
21 Kentucky ». Dsnnlson, 24 How. 66.
22 Cohens v. Virginia, 6 Wheat. 264.
23 Ex parte Barry, 2 How, 65.
Appellate jurisdiction.— In every case to which the
judicial power extends, and in which original jurisdiction
IS not given, the Supreme Court may exercise its appellate
jurisdiction. 1 Where original jurisdiction is founded on
the character of the parties, the judicial power cannot be
exercised in its appellate form ; *^ but where it is founded
on the nature of the controversy the appellate jurisdic-
tion attaches.8 The essential criterion of appellate juris-
diction is, that it raises and corrects proceedings in a
cause already instituted.^ In prize cases the Supreme
Court can exercise appellate jurisdiction only .6 The ap-
pellate power is not Imiited to any particular courts. <* It
may be exercised over territorial courts," but not without
legislation *by Congress,8 or over State courts on questions
involving the constitutionality of legal enactments.® But
it cannot exercise appellate jurisdiction over the Court of
Claims, 10 nor can Congress grant appellate jurisdiction on
the inferior courts from the decisions of the State courts. ^^
The principle on which appellate -jurisdiction from State
courts is allowed is to grant efficient and iust means of
self-protection. i2« The Supreme Court jurisdiction over
inferior courts is strictly appellate.^s The jurisdiction on
appeal must be conferred by Congress,^* with such excep-
tions and under such regulations as Congress may make,^5
and the action of Congress excludes State legislation. ^^
All appellate jurisdiction must be exercised in pursuance
of positive statutes fully within constitutional grants. i7
The power of the Supreme Court to issue a mandamus is
in the exercise of an appellate jurisdiction only.i^ go as
to the writ of habeas corpuaA^ The power to award this
writ by any court of the United States must be given by
Digitized by LaOOQ IC
JLVt-SEIt §1 2 jnBiBDiCTieir. 2tt
lsw.2o It exists in all oases of commitment by the jndi-
ciat authority of the United States not expressly excepted
by Congress.-^ ' It is only when the proceedings below am
entirely void that relief may be given on review by ?iahe<u
corpus.^^ The repeal of an act authorizing appeal in cases
of habeas corpus does not affect th« jurisdiction anteced-
ently exerci8ed.23 An enactment of the Confederate
States enforced as a law of one of the States composing
the Confederacy is a statute of such State, as to the juris-
diction of the supreme court over judgments and decrees
in State courts .'-**
1 Cohens v. Yli^gfinla, 6 Wheat. 264: Marbnry v. Madison, I Granch,
137; Ex parte Vallandieham, 1 WaU. 252; Ex parte Yerger, 8 WaJL 98:
Martin v. Hunter, 1 Wheat. 804.
2 Osbom V. Bank of United States, 9 Wheat 738.
3 Martin v. Hunter, 1 Wheat. 304; Cohens v. Virginia, 6 Wheat 264.
4 Marbury v. Madison, 1 Cranch, 137.
5 TheAUcia,7WalL571.
6 Martin V. Hnnter^l Wheat. 804 ; Cohens v. Virginia, 6 Wheat. 264;
Dodge V. Woolsey, 18 How. 331; Ableman v. Booth, 21 How. 506; 3WI«.
1; Ferris v. Coover, 11 Cal. 176; Piqua Banic v. Knoup, 6 Ohio St 342; 16
How. 369.
7 Benner v. Porter, 9 How. 244 ; Hunt », Palao, 4 How. 589 ; Freeborn
p. Smith, 2 Wall. 173.
8 McNulty V. Batty, 10 How. 79.
9 Bridge Prop. v. Hoboken &c. Co. 1 Wall. 116; Funnan v. Nichol, 8
Wall. 57; l>elmas v. Ins. Co. 14 Wall. 667: Home ins. Go. v. Augusta, 93
U. S. 116; Ferris V. Coover, 11 Cal. 176. But see Johnson v. Oordon, 4
Cal. 368.
10 Gordon v. U. S. 2 Wall. 561.
11 Patrie v. Murray, 43 Barb. 323; Wetherbee v. Johnson, 14 Mass. 412.
12 Scott V. Jones. 5 How. 343.
13 Gaines v. Belt, 15 Peters, 17.
14 Barry v. Mercein, 5 How. 119; Ex parte McCardle, 7 Wall. 506; U.
S. V. New Bedford Br. 1 Wood. & M. 437 ; Livingston v. Van Ingen, 9
Johns. 507 : Marbury v. Madison, 1 Cranch, 137; Ex parte Bol]man,4
Cranch, 75; U. S. v. Hamilton, 3 Dall. 17: Ex parte Kearney, 7 Wheat
38; Weston v. Charleston, 2 Peters, 449; £x parte Crane, 5 Peters, 190.
15 Soott V. Jones, 5 How. 374; Ex parte McCardle, 7 Wall. 506; Ex
parte Yerger, 8 Wall. 98 : Darousseau v. U. S. 6 Cranch, 313; Ex parte
Vallandlgham, 1 Wall. 252; U. S.». Moore, 3 Cranch, 159; Murdock ».
Memphis, 20 Wall. 590; Martin v. Hunter, 1 Wheat. 304.
16 Houston V. Moore, 5 Wheat. 1 ; Prigg r. Commonwealth, 16 Peters,
539.
17 Wixart V. Dauchy, 3 Dall. 321; Clarke v. Bazadone, 1 Cranch, 212;
U. S. V. Moore, 3 Cranch, 159 ; Darousseau v. U. S. 6 Cranch, 807; Ex
parte Kearney, 7 Wheat. 38; Ex parte Watklns, 3 Peters, 193.
18 Marbury r. Madison, 1 Cranch, 137 ; Ex parte Yerger, 8 Wall. 97.
10 Ex parte Bollman, 4 Cranch, 75.
20 Ex parte Bollman, 4 Cranch, 75.
21 Kane's Case, 14 How. 103; Ex parte Yerger, 8 Wall. 99.
Digitized by LaOOQ IC
^ JUBISDKSriON. 44?t.JQEZ,'g'jl
22 Ex parte Parks, 93 0. S. 18.
23 Ex parte McGardle, 7 WaU. 506.
24 Ford v. Surget, 97 U. S. 584; Williams v. Brufly, 96 U. S. 176.
* The trial of all crimes^ except in cases of impeacht)Mntf
sTuj^ !>€ try Jury; and such trial shall t>e held in the State
where the said crimes shall have been committed; hut when
not committed within any States the trial shall be at such
place or places as the Congress may by law have directed.
Trial for cripiea. — This applies to proceedixigs in
Federal courts,^ and is not suspended by the intervention
of war.2 A citizen in civil life in nowise connected with
military service cannot be tried by a military conunisslon
where courts are open to hear criminal acoosations and
redress grievances.* As soon as it judicially ax>pears of
record that the party has pleaded not guilty, an issue has
arisen which courts are bound to direct to be tried by a
jury .4 The trial is the examination before a competent
tribunal, according to the law of the land.^ Congress
must first make an act a crime, affix the penalty, and
declare the court having jurisdiction ;<^ and any law dis-
pensing with the requisites to constitute a jury is uncon-
stitutional.^ A crime committed against tne laws of the
United States out of the limits of a State is not local, but
may be tried at such place as Congress shall designate by
law. 8 A statute whicn provides that a party may be tried
by the court on a charge of libel is void, although it gives
him a ri^ht of appeal to a court where trial may be had
by jury.y A statute to confiscate the property of a person
ei]^aged in rebellion, in any district in which property
may be found, is void.^^ A proceeding to annul the
license of a pilot for neglect of duty is not a criminal
proceeding.il
1 Morphy v. People, 2 Cow. 815 ; Anderson v. Durln, 6 Wheat. 215.
See Amend. Arts. IV, V, VI.
2 Ex parte Milligan, 4 Wall. 123.
3 ExparteMilligan,4Wall. 123.
4 U. S. V. Gilbert, 2 Sum. 10.
5 U. S. V. Cartls, 4 Mason, 232.
6 U. S. V. Hadson, 7 Granch, 32; XT. S. v. Coolid^e, 1 Wheat. 415.
7 Work V. State, 2 Ohio St. 296; State v. Cox, 3 English, 436.
8 U. S. V. Dawson, 15 How. 467. And see Anderson v. Dmm, 6
Wheat. 215.
9 Ex parte Dana, 7 Ben. 1.
10 Norris v. Domisshan, 4 Met. (Ky.) 346.
11 Iiow V. Commissioners, R. M. Charlt. 902.
Digitized by LaOOQ IC
Art. m, § 3 TBBASON. 228
Sbotioh 8.
• Treason.
1. Deflnition and evidence of.
2. Punlslunent of.
Sec. 3. 1 Treason against the United States shall consitt
orUy in levying war against them, or in adhering to tMr
enemies^ giving them aid and comfort, No person shaU be
convicted of treason unless on the testimony of two witnesses
to the sams overt act, or on confession in open court.
Treason.— The elements which constitute treason are :
A combination or conspiracy by which several are united
in one common purpose ;i the purpose must be to prevent
the execution of some public law,2 and actual force must
be employed by such combination ^ to overthrow the Gov-
ernment or coerce its conduct.* It is the breach of alle-
giance, either perpetual or temporary. ^ So, war levied
under the pretended authority of the Confederate States
is treason.^ The occupation of a fortress by men in mili-
tary array to detain it, is treason ;? the offense is com-
plete when force is directed to overthrow only certain
portions of the country. ^ The delivery of a prisoner to
an enemy is treason.^ When an armed body is mustered
in military array for a treasonable purpose, every step
taken by any of them is an overt act.^** Though no man
can be convicted of treason who was not present when
war was levied, ^i yet the crime may be committed by
those not personally present, if they are leagued with the
conspirators and perform any part,i'^ but the overt act and
the intention must concur to constitute the crime. i8 Tbe
only compulsion which will excuse one marching with
rebels is force on the person and present fear of death, i*
Th^ crime of treason is not to be extended by construc-
tion, i^ The conspiracy to levy war and actual levying of
war are distinct offenses, i^ So, resistance to the execu-
tion of a law must be of a political and not of a private
nature. 1'' The mere enlistment of men who are not as-
sembled is not a levying of war. is Enemies refer to sub-
jects of a foreign power, and not to citizens of a State in
rebellion. 19 If a party, being with a squadron, comes
peaceably to the snore to procure provisions, it does not
constitute an overt act .20 That two witnesses are required
refers to the proof on the trial, and not to proceedings
before the grand jury, or to preliminary investigations.^'^
1 In re Bollman, 4 Cranch, 75; Druecker v. Salomon, 21 Wis. 621.
2 Druecker v. Salomon, 21 Wis. 621.
^.J^^'3' ^ Burr, 9 Wheat. 529: 2 Cranch C. C. 879; U. S. v. MitclieD,2
DaU. 848: U. 8. ». Hanway, 2 Wall. J. 189; U. S. v. koxie, 1 Paine, 2W;
U. S. V. Fries, 2 Wbart. St. Tr. 482; 8 DaU. 515.
Digitized by LaOOQ IC
229 TREASON. Art. m, § 3
4 U. S. V. Grealthonse, 2 Abb. U. S. 364.
5 IT. S. V. Wiltberger* 5 Wheat. 76; 8 Wash. C. C. 515.
6 Sbortridge v. Macon, Chase, 136.
7 U. 8. r. Grelner, 4 Phlla. 396.
8 U. S. V. Greathouse, 2 Abb. U. S. 364.
9 U. S. V. Hodges, 2 Wheel. C. C. 477.
10 U. S. V. Grelner, 4 Phlla. 396.
11 XJ. S. V. Burr, I Cranch, 469; 2 Burr's Trl. 401 ; IT. S. v. Wiltberger. 5
Wheat. 76; 3 Wash. C. C. 515.
12 In re Bollman, 4 Cranch, 75; U. S. v. Burr, 4 Cranch, 469; DruecKer
0. Salomon, 21 Wis. 621.
13 U. S. V. Fries, 3 Dall. 515; U. S. v. Hodges, 2 Wheel. C. C. 477; U.
S. V. Burr, 4 Craach, 469.
14 U. S. V. GreiDer,4 Phlla. 396; IT. S. v. Hodges, 2 Wheel. C. C. 477.
15 In re Bollman, 4 Cranch, 75.
16 In re Bollman, 4 Cranch, 75; U. S. v. Mitchell, 2 Dall. 348.
17 U. S. V. Hanway, 2 Wall. Jr. 139; U. S. v. Hozle, 1 Paine, 265; U. S.
V. Fries, 3 Dall. 515.
18 Ex parte Bollman, 4 Cranch, 75; U. S. v. Burr, 4 Cranch, 469; U. S.
9. Hanway, 3 Wall. Jr. 140; People v. Lynch, 1 Johns. 553.
19 IT. S. V. Greathouse, 2 Abb. U. S. 364; U. S. ». Cheneweth, 4 West
L. Mo. 165.
20 U. S. ». Pryor, 3 Wash. C. C. 334.
21 U. S. V. Hanway, 2 WaU. Jr. 138; U. S. v. Burr, 4 Cranch. 469; 1
Burr. Trl. 196; U. S. v. Grelner, 4 Phlla. 396. But see U. S. v. Fries, 2
Whart. St. Tr. 480.
2 The Congress shall have power to declare the punishment
of treason, but no attainder of treason shall work corruption
of blood, or forfeiture except during the life of the person at-
tainted,
PnniBhrnent.— Power to punish for treason against the
United States is exclusive in Congress,^ The confisca-
tion act provided against any forfeiture of real estate be-
yond the life of the offender.^ All that can be sold under
the confiscation act is the right to the property terminating
with the life of the person for whose offense it had been
seized.^ Only the lite estate is subject to condemnation
and sale.^ This act is a mere exercise of the war power;
not a criminal procedure.^ This provision does not ap-
ply to the confiscation of enemies' property, even though
guilty of treason. 6
1 People V. Lynch, 11 Johns. 553.
2 Bigelow r. Forrest, 9 Wall. 350.
3 Bigelow V. Forrest, 9 Wall. 339.
4 Day V. Micon, 18 Wall. 156.
5 MiUer V. U. S. U Wall. 304.
6 Confiscation Cases, 1 Woods, 221.
Dbsty Fed. Con.— »0.
Digitized by LaOOQ IC
AMStk TV, § 1 STATE BIGHTS. 290
ARTICLE IV.
BTATB SIGHTS.
Section i.
Acts and official records of States. AuthentieeiHon and ^eet of.
Sec. 1. 1 Full faith and credit shall he given in each State
to the public acts, records, and judicial proceedings of every
other State. And the Congress may by generaflaws prescribe
the manner in which such acts, records, and proceedings shaU
be proved, and the effect thereof.
Faith and credit.— These terms point to tha attributes
and qualities which judicial proceedings and records shall
have as evidence.^ Records are all acts legislative, exec-
utive, judicial, and ministerial, which constitute the
public records of the State,^ and the object of the section
IS to declare that full faith and credit snould be given to
such, the manner of authenticating the same, and their
effect when properly authenticated p and to this end Con-
gress has full power to legislate as to the effect of iudicial
proceedings in the courts of the States and Territories.*
liegisiative acts are to be authenticated by the seal of the
State,6 which imports absolute verity.® The object of this
clause was to preclude judgments from being disregarded
in other States, when a proper tribunal with competent
i'urisdiction had rendered them,' but only so far as they
jave jurisdiction, 8 the record being subject to contradic-
tion as to facts necessary to give jurisdiction,^ as where
judgment was rendered against a citizen of another State
not served with process, and who did not voluntarily
appear. ^<) The Constitution has effected no change in the
nature of a judgment,ii it simply places judgments in
another State on a different footing from what are com-
monly called foreign judgments, as to their force and
effect. 12 A judgment in any State is to be regarded as a
domestic judgment, is but this clause relates only to judg-
ments in civil actions, and not to judgments in criminal
prosecutions,!* nor to decrees in divorcers
1 McElmoyle v. Cohen, 13 Peters, 312: Carter v. Bennett. 6 PU. 214;
Joice r. Scales, 18 Ga. 725; Brengle v. McClellan, 7 Gill & J. 434; Sbelton
V. Johnson, 4 Sneed, 672; Wilson ». Robertson, 1 Tenn. 484.
2 White V. Burnley, 20 How. 250; McGrew v. Watrous, 16 Tex. 809.
Digitized by LaOOQ IC
231 STATE BIGHTS. Art. IV,§ 0.
3 Green v. Sarmiento, 1 Peters C. C. 74; 3 Wash. C. C. 17.
4 Hughes V. Davis, 8 Md. 271 : Duvall v. Fearson, 18 Mtl. 502. But^see
Adams V. Way, 33 Conn. 419; Haggin v. Squires, 2 Bibb, 334; Setou o.
Haaliam. R. M. Charlt. 374.
5 U. S. V. Johns, 4 DaU. 412; 1 Wash. G. G. 363; Craig v. BroTrn,
Peters C. C. 354.
6 IT. 8. V. Johns, 4 DaU. 416; 1 Wash. C. C. 334; U. S. v. Amedy, 11
Wheat. 407.
7 People V. Dawell, 25 Mich. 347.
8 D'Arcy v. Ketchum, 11 How. 165; Board of Pub. Wks. v. Golninida
CoUege, 17 Wend. 521.
9 Thompson v. Whitman, 18 Wall. 457; Pennywlt v. Foote, 27 OMo
St. 600.
10 D'Arcy v.- Ketchum. 11 How. 165.
11 McEImoyle v. Cohen, 13 Peters, 812.
13 Oldens v. HaUet. 3 N. J. 466; Gibbons v. Livingston, 6 Ibid. 238;
Gibbons v. Ogden, 9 Wheat. 1.
13 Bazley v. Dinah, 27 Pa. St. 247.
14 Commonwealth v. Green, 17 Mass. 514.
15 Hood V. StAte, 56 Ind. 263; Sewall v. Sewall, 122 Mass. 156.
Bffect of judgments.— The judgment of a State coutt
has the same validity, credit, and effect in any State that
it has in the State where rendered, ^ and where juris-
diction attaches it is conclusive as to the merits ;'- but no
greater effeqt can be given than is given in the State where
rendered.8 If a decree is enforceable in the State where
rendered, it is enforceable in any other State.* The clause
does not give validity to a void decree.^ The records and
judicial proceedings to which full faith and credit are to
be given are only such as are duly rendered by a compe-
tent court, having full jurisdiction,^ without reference to
whether they be superior courts of record or inferior tri-
bunals."'' The legislature of a State has the constitutional
power to require a less amount of proof than is required
by the act ot Congress. 8 A judgment can only be contro-
verted on the ground of want of jurisdiction.^ The pro-
vision in this section is binding on the States. ^^
1 Westervelt v. Lewis, 2 McLean, fill; Warren Manuf. Co. v. Mbaa
Ins. Co. 2 Paine, 502; Hampton t;. McConneU, 3 Wiieat. 284; Mayhew r .
Thatcher, 6 Wheat. 129; Sarchet v. The Davis, Crabbe, 185; Houston v.
Dunn, 13 Tex. 480: Benton v. Bergot. 10 Serg. & B. 242; Green v. Sar-
miento, 3 Wash. C. O. 17; Bank of Ala. v. Dalton, 9 How. 520; Mills v.
Doryee, 7 Cranch, 484; Whltwell v. Barbier, 7 Cal. 64.
2 McEImoyle v. Cohen, 13 Peters, 312: Christmas v. Russell, 5 Wan.
302; U. S. Bank v. Merchants' Bank, 7 Gill. 430; Bissell c. Briggs, 9 Mass.
462; Ingram p. Droukard, 14 Tex. 352.
3 Public Works v. Columbia College, 17 Wall. 529 ; Suydam v. Barber,
18N.Y.468.
4 Caldwell v. Carrington, 9 Peters, 86.
Digitized by LaOOQ IC
Art. rV, §1 STATE HIGHTS. 232
5 Ogdeii V. Saunders, 12 Wheat. 213 ; Yanaxem v. Hazlehorsts, 4 N. J.
192. And see Mitchell v. Lenox, 14 Peters, 49.
6 Aldrich v. Kenney, 4 Conn. 390; Blssell t. Brlggs, 9 Mass. 462.
7 Taylor v. Barron, 30 X. H. 78 ; Silver Lake Bank v. Harding, 9 Ohio,
M5; Pelton v, Platner, 13 Ohio, 209.
8 WhitweU r. Barbler, 7 Cal. 54.
9 Price V. Ward, 1 Dutch. 225; Smith v. Smith, 17 lU. 483; Black
V. Black, 4 Brad. 174; Beed v. Wright, 2 Iowa. 15; McLanrine v. Monroe,
30 Mo. 4b-2; Wright ». Boynton, 37 N. H. 9; JudkUis v. Union L. Ins. Co.
Ibid. 470; Rape v. Heaton, 9 Wis. 328.
10 Livestock &c. Asso. v. Crescent City, 1 Abb. IT. S. 396.
Po"wer of Congress.— The authenticity of a judgment
and' its effect depend upon the law made in pursuance of
the Constitution,! which declares that Congress may mark
out the effect and define the general power given, 2 and to
give a conclusive effect to judgments in State courts.* The
Constitution does not confer the power to give to a judg-
ment all the legal properties, rights, and attributes to
which it is entitled by the laws of the State where ren-
dered,4 nor that the eiiects and consequences of a litiga-
tion shall follow it into other States,^ nor to extend the
local jurisdiction, or the operation of a local decree ; 6 so
as to judgments in insolvency proceedings. ^ So, a dis-
charge from imprisonment for debt in one State will not
prevent an arrest under the laws of another; State. 8 So,
the probate of a will, being but a decree in rem, is confined
in its operation to things within the State ; ^ but the record
in proceedings in bankruptcy is competent evidence. i"
The record 01 a judgment certified according to law is ad-
missible in evidence in any State ; but the legislature of
a State has power to require a less amount of proof. ^^
So, a State may give the judgment of another State any
effect it may think proper, so that it does not derogate
from the effect secured by the Constitution and the acts
of Congress. !2 Thus, the law of a State may fix different
times lor barring the remedy in a suit upon a judgment of
another State. ^^ But where full faith and credit is not
given to judicial proceedings of another State, the judg-
ment based thereon will be erroneous, i*
i McElmoyle v. Cohen, 13 Peters, 312.
2 Curtis V. Glbbs, 1 Pen. (N. J.) 4p5.
a Mills V. Duryee, 7 Cranch, 481 ; McElmoyle t>. Cohen, 13 Peters, 312:
Warren Manuf . Co. v. Etna Ins. Co. 2 Paine, 501 ; Green v. Sarmiento, 1
Peters C. C. 74; 3 Wash. C. C. 17.
4 Brengle v. McClellan, 7 Oill & J. 434.
5 Shelton v. Johnson, 4 Sneed, 672.
6 Bowen ». Johnson, 5 R. 1. 112.
Digitized by LaOOQ IC
233 PBiviLEGES OF CITIZENS. Art rV, § 2
7 McBlmoyle v. Cohen, 13 Peters, 312; Brengle u. McClellan, 7 Gill A
J. 434; Cameron v. Wurtz. 4 McGord, 278; Harness v. Oreen, 20 Mo. 316;
Colt's Estate, 4 Watts & S. 314.
8 Joice V. Scales, 18 G^a. 725.
9 Darby v. Mayer, 10 Wheat. 465.
10 Carr v. Gale, 3 Wood. & M. 60.
11 Parke v. Williams, 7 Cal. 247; WhItweU v. Barbler, 7 Cal. 54.
12 Bissell V. Briggs, 9 Mass. 462.
13 McElmoyle r. Cohen, 13 Peters, 312; Bacon v. Howard, 20 How. 22;
Robinson v. Peyton, 4 Tex. 276.
14 Green v. Van Busklrk. 7 Wall. 133.
SaCTiON 2.
Privileges and immunities of citizens.
1. Entitled to same alike in every State.
2. Fugitives from justice.
3. Fugitives from servitude.
Sec. 2. A The citizens of each State shall he entitled to all
privileges and immunities of citizens in the several States.
Citizens.— The word "citizens" means citizens of the
United States.^ It imports the same as the word '* free-
men," and includes every person who, by birth or natu-
ralization, i« or may be qualified to exercise and enjoy all
the rights which a native-born inhabitant does or can
enjoy .'-^ Citizens are all white inhabitants who, born in
the colonies, adhered to the cause of independence up to
July, 1776.3 When Congress receives a foreign nation
into tbe Union, its citizens become citizens of the United
Statei^^ So, all free inhabitants of Texas at the time of
its atlnexation^G and all inhabitants under the Treaty of
Flofida,<^ and all inhabitants of California by the treaty,
vfltt remained and adhered to the United States, became
citizens. "7 A citizen of the United States is a citizen of
ffle State where he resides, s So, a free colored person
Ikiight be a citizen of the United States. » The guaranty
applies to people of the United States, whether in the
States or Territories, lo The term applies only to natural
persons, members of the body i)oIitic owing allegiance
to the State, and not to corporations. ^^ Birtli and alle-
giance go together, except in case of the child of an am-
bassador.^^ As to the Indian tribes, a child of a member
thereof, though bom in the United States, is not a citi-
zen, is
1 Davis V. Pierce, 7 Minn. 13.
2 Douglass V. Stephens, 1 Del. Ch. 465; Slaughter-House Cases, 16
Wall. 129:
Digitized by LaOOQ IC
Art. IV, § 2 PRIVILEGES OF cmzENS. 234-
IlarrisoQ, 20 Johns. Cas. 29; Jackson v. White, 20 Johns. 313; Sitaoks v.
Dupout, 3 Peters, 242.
4 Sabarlego v. McKenney , 18 How. 240 ; Cryer v. Andrews, 11 Tex. 105.
6 Calkins v. Cocke, 14 Haw. 227.
6 Amer. Ins. Co. v. Canter, 1 Peters, 511; U. S. v. Gratiot, 4 Peters,
526; Cross v. Harrison, 16 How. 189.
7 Sabarlego v. McKenney, 18 How. 289; U. S. v. Blehie, 17 How. 538.
8 Oassies v. BaUon, 6 Peters, 761 ; Smith v. Moody, 26 lud. 299.
9 Smith V. Moody, 26 Ind. 305. Contra, Pendleton v. Arkansas, 6
Ark. 509; Hlckland v. Indiana, 8 Blackf. 365; Indiana v. Cooper, 6
Blackf . 253; Baptiste v. Indiana, Ibid. 283; Shaw v. Brown, 35 Miss. 246:
Amy V. Smith, 1 Litt. 326. But see post. Amendment XIV, sec. 1, and
note.
10 Anonj^mous, 6 Op. Att.-Gen. 304.
11 Bank of U. S. v. Devaux, 5 Cranch, 61 ; Bank of Augusta v. Earle.
13 Peters, 586; Slocombr. Bank of Vicksburg, 14 Peters, 60; Louisville
R. R. Co. V. Letson, 2 How. 556; Paul v\ Vii-ginla, 8 Wall. 180; Warren
Manuf. Co. v. Etna Ins. Co. 2 Paine, 502. And see Liverpool Ins. Co. v.
Massachusetts, 10 Wall. 566} Pensacola Tel. Co. v. West. U. T. Co. 96
U. 8. 1; People v. Imlay, 20 Barb. 68; Phoenix Ins. Co. v. Comnion-
wealth, 5 Bush, 68; Slaughter v. Commonwealth, 13 Gratt. 767; Ducat
V. Chicago, 10 Wall. 410; 48 111. 172; Louisiana v. Latlurop, 10 La. An.
398: Commonwealth v. Milton, 12 B. Mon. 212; Patern v, Wright. 23 N.
J.^; West. U. T. Co. v. Mayer, 28 Ohio St. 621; Fire Dep. v. Helfen-
steln, 16 Wis. 142.
12 Inglis V. Sailors' Snug Harbor, 3 Peters, 99 ; XJ. S. v. Rhodes, 1 Abb.
U. S. 40; Lynch v. Clarke, 1 Sand. Ch. 583; McKay v. Campbell, 2 Sawy.
122.
13 McKay v. Campbell, 2 Sawy. 122.
Privileges and immunities.— These expressions are
confined to those privileges and immunities which are in
their nature fundamental, ^ such as protection by the Gov-
ernment; the enjoyment of life and liberty; the right to
acquire and possess property, and to pursue and obtain
happiness and safety, subject to such restraints as the
Government may justly prescribe for the general good;^
the right to pursue a lawful employment in a lawful man-
ner ,» and to be exempt from any higher taxes or excises
than those imposed on its own citizens ;* such privileges
and immunities as belong to general citizenship, ^ includ-
ing the right to pass freely into and through any State for
the purposes or commerce, trade, residence, etc.,« the
meaning being that no privilege or immunity allowed to
the most favored class shall be withheld from citizens of
another State," such rights to be determined in view of the
particular rights asserted or denied. ^ It does not embrace
privileges conferred by the local laws of a State,^ as the
rights of representation and election, ^o or a right peculiar
Digitized by LaOOQ IC
230 PRIVILEGES OF CITIZSMS. Art. IV, §^2.
to some individual or body.^^ The right to institute
actions isone of the privileges and immunities of citiz^is
of' each State ;i^ so, the right to su^ out an attachment
in. another State; ^^ go, a citizen of one State may sue a.
foreigner in another State. ^"^ Congress cannot grants psiv-
ileges to citizens of one State over those of another, and
cannot give a State the power to do so.^^ The right to 8«.ll
liquor is not a privilege or immunity of citizenship^^"
nor the right to practice a profession.!*^ One may be a
citizen without having all the privileges and immunities
of citizenship. 18
1 CorfleW ». Coryell, 4 Wash. C. C. 380.
2 Slant^hter-House Cases, 16 Wall. 76 ; Ward v. Maryland, 12 Wall.-430 ;
Gorfteld r. Goryeli, 4 Wash. C. C. 371; Bennett v. Boggs, Bald. 60; Com*
monwealth v. Milton, 12 B. Mon. 212 ; Campbell v. Morris, 3 Har. & Mcll.
535; Ward v. Morris, 4 Ibid. 330: State v. Sledbury, 3 R. I. 142; Live
Stock Co. r. Crescent City, 1 Abb. U. 8. 398.
3 Slaughter-Hoose Gases, 16 Wall. 106.
4 Ward V. Maryland, 12 W^l. 430; Wiley v. Parmer, 14 Ala. 627;
Oliver r. Washington AIlUs, 93 Mass. 268; Smith v. Moody, 26 Ind. 299.
5 Seott r. Sandford, 19 How. 580.
6 Ward V. Maryland. 12 WaU. 430: Crandall v. Nevada, 6 Wall. 49;
liemmon v. People, 20 N. Y. 607; 26 Barb. 270: Ex parte Archy, 9 Oal.
147; Willard v. People, 5 lU. 461; Julia v. McKlnney, 3 Mo. 270; State v.
Medbory, 3 B. 1. 142.
7 Tennessee ». Claiborne, 1 Meigs, 331.
8 Conner v. Elliott, 18 How. 593; Live Stock &c. Asso. v. Crescent
City &c. Co. 1 Abb. U. S. 397; Ex rel Hobbs, 1 Woods, 642.
9 Conner v. Elliott, 18 How. 593; Slaughter-House Cases, 16 Wall. 76;
1 Woods, 2S; Live Stock &c. Asso. v. Crescent City &c. Co. 1 Abb. U. S.
397.
10 Scott V. Sandford, 19 How. 580; Murray v. McCarty, 2 Munf. 393;
Allen V. Sarah, 2 Har. iU; Smith v. Moody. 26 lud. 299; Campbell v.
Morris, 3 Hai*. & McH. 535.
11 Ex parte Coupland, 26 Tex. 420.
12 Davis V. Peirse, 7 Minn. 13; McFarland v. Butler, 8 Ibid. 116; Jack-
son V. Butler, Ibid. 117; Morgan v. Neville, 74 Pa. St. 52; Reynolds v.
Geary. 26 Conn. 183.
18 Morgan v. Neville, 74 Pa. St. 52. But this right may be limited—
KIncaid r. Frauds, Cooke, 49; Campbell v. Morris, 3 Har. & McH. 535.
14 Barrell v. Benjamin, 15 Mass. 354.
15 Chapman v. Miller, 2 Spear, 769.
16 Bartemeyer v. Iowa, 18 Wall. 133; Harris v. State, 4 Tex. Ct. App.
131 : Bertholf v. O'Rlelly, 18 Am. L. R. N. S. 119; W^nehamer v. People,
13 N. Y. 378: Groversville v. Howell, 70 N. Y. 287; Slaughter-House
Cases, 16 WjUI. 36; O'Dea v. State, 57 Ind. 119; Metrop. Bd. of Excise v,
Barrie, 34 N. Y. 657; Beer Co. v. Massachusetts, 97 U. S. 25.
17 Languille v. State, 4 Tex. Ct. App. 312
18 Scott V. Sandford, 19 How. 533, denying Amy v. Smitb, 1 Litt. 328.
See jHMJ, Amendment XIV.
Digitized by LaOOQ IC
Art. IV, §2 PBIVHiEGES OF CITIZEN'S. 236
state rights.— Th« main object of this clause was to
prevent each State from discriminating in favor of its
own people, or against those of any other State. ^ Citi-
zens do not by this clause acquire any peculiar privileges
in another State, except upon the condition on which they
may be held or enjoyed by the citizens of such other
State; 2 and where tlie laws differ, a citizen of one State,
claiming rights in another, must claim according to the
laws of that State and not of his own.s This clause does
not apply to one who migrates to another State, the State in
which ue takes up liis residence may determine his status;^
such person must be regarded as a citizen of the State. ^
This clause does not exempt the citizens of another State
from any condition which the laws of the State impose on
its own citizens,** nor to interfere with the local policy of
State governments as to their own citizens.' This clause
prohibits discrimination by one State against citizens of
another State; » but it is not intended to secure the citizens
of any State against discriminations made by their own
State in favor of citizens of other States, nor of one class
against another class of citizens of the same State.^ So,
statutes of limitations discriminating as to residence are
not unconstitutional. '^0 A State law imposing a discrim-
inating tax on non-resident traders is void,ii but the
property of a non-resident may be taxed equally with that
of a resident. 12 A tax on those who sell goods brought
into the State and not owned by residents is valid. ^8 a
license on the sale of goods by non-resident traders is
valid if there is no discrimination ; i* so, a license required
to vend foreign merchandise is valid,!^ or for all articles
except those manufactured by themselves within the lim-
its of the State ; ^^ so, a State tax on articles manufactured
in the State is valid. ^" A State is not prohibited from reg-
ulating or restricting the business of a corporation created
by the laws of another State,^^ ami may impose terms or
conditions on its right to carry on business within its ter-
ritory, i'-* A State mav impose reasonable conditions on a
foreign corporation for the privilege of doing business
within its limits.^o The provisions of this section do not
apply to corporation S.21
1 Davis V. Pierce, 7 Minn. 13.
2 Paul V. Virginia. 8 Wall. 168; Reynolds v. Geary, 26 Conn. 179;
Ck>mmonweaItIi v. Milton, 12 B. Mon. 212; Lemmon v. People, 5 Sandf.
631 ; 20 N. Y. 682; 26 Barb. 270.
3 Lsmmon v. People, 5 Sandf. 681 ; 20 N. Y. 562; 26 Barb. 270.
4 Groves o. Slaughter, 15 Peters, 449; Stradcr v. Graham, 10 How;
82; Moore v. Illinois, 14 How. 13; New York v. Miln, 11 Peters, 102.
Ex parte Simmons. 4 Wash. C. C. 396; Scott v. Sandford, 19 How. 393.
Bradwell v. State, 16 Wall. 130. But see Abbot v. Bayiey, 23 Mass. 89.
Digitized by LaOOQ IC
237 PRIVILEGES OF CITIZENS. Art. IV, § 2
5 Commonwealth v. Towles, 5 Leigh, 743.
6 Paul V. Virginia, 8 Wall. 180: Commonwealth v. Milton, 12 B. Mon.
212: Lemmon v. People, 20 N. Y. 607; 26 Barb. 270; Jackson v. Bullock,
12 Conn. 38.
7 Kincaid ». Francis, Cooke, 49.
8 Paul V. Virginia, 8 WaU. 168; Ward v. Maryland, 12 Wall. 418;
Williams v. Bruffy, 96 U. S. 183; Corfleld v. Coryell, 4 Wash. C. C. 371;
Lemmon ». People, 20 N. Y. 608.
9 Commonwealth v. Orlffln, 3 B. Mon. 208; Bradwell v. State, Id
Wall. 138.
10 Chemung Bank v. Lowery, 93 U. S. 77.
11 Ward V. Maryland, 12 Wall. 418; Wiley v. Parmer, 14 Ala. 627;
Osborne v. Mobile, 16 Wall. 482,* Weltou v. Missouri, 55 Mo. 288; State v.
Browning, 62 Mo. 591.
12 Duer V. Small, 4 Blatchf. 263; Battle v. Corporation, 9 Ala. 234.
13 People V. Coleman, 4 Cal. 46.
14 Woodruff V. Parham, 8 Wall. 123; Hinson v. Lott, 8 WalL 148;
Mount Pleasant v. Clutch, 6 Iowa, 546.
15 Sears v. Commissioners, 36 Ind. 267.
16 Seymour v. State, 51 Ala. 52.
17 Downing v. Alexandria Co. 10 Wall. 173.
18 Paulr. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 WaU. 410; Liv-
erpool Ins. Co. V, Massachusets, 10 Wall. 567.
19 Lafayette Ins. Co. v. French, 18 How. 404; Ducat v. Chicago, 10
WaU. 410.
20 Ins. Co. V. Morse, 20 Wall. 457; Bank of Augusta v. Earle, 13 Pe-
ters, 519; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566: Louisiana
V. Lathrop, 10 La. An. 398; Doyle v. Continental Ins. Co. 94 U. S. 540;
In re Comstock, 11 Bank. Beg. 172; Lamb v. Lamb, 6 Biss. 420; Hofl-
xn£m V. Banks, 41 Ind. I; Rising Sun Ins. Co. v. Slaughter, 30 Ind. 520;
Wash. Co. M. Ins. Co. v. Hastings, 84 Mass. 398; WUliams v. Cheney,74
Mass. 206: Paul v. Virginia, 8 W^. 168; Ins Co. v. N. 0. 1 Woods, 89; JBx
parte Boblnson, 12 Nev. 263; Ex parte Cohn, 13 Nev. 424.
21 Warren Manuf . Co. v. Etna Ins. Co. 2 Paine, 516.
2 A person charged in any State with treason^ felony, or
other crimej who shall flee from justice^ and he found in
another State^ shall, on demand of the executive authority of
the State from which he fled^ he delivered upt to he retnoved
to the State having jurisdiction of the crim^.
Fugitives from justice. — A fugitive from justice is
any person who commits a crime and withdraws himself
from the jurisdiction to avoid the punishment ;i or one
who secretly commits a crime and suddenly departs ;2 or
who commits a crime and leaves without waiting to be
tried; 8 or who, conscious of being liable to prosecution,
leaves the State, or if admitted to bail forfeits the same
and again flees.* Treason, felony, or other crime embrace
every act made punishable by the laws of the State where
committed.^ It is not necessary that the crime charged
Digitized by LaOOQ IC
^SAat.^lVf'% 2 PRIVILEGES OF CITIZENS. 238
should be an offense at common law,^ it is emough if it is a
ethnoagiainst the State,^ and includes any act panisbable
by law, » misdemeanors as well as treason. ^ The word
*' crime" emjbraces every species of indictable offense, i®
and even an act which was not criminal at the time of the
adoption of the Constitution, but was made so by subse-
quent legislation. 11 Whether the act chared be a crime
is to be determined by the. laws of the State from which
the accused has fled, although it may be no crime in the
State into which he has come.i^ A fugitive may be de-
tained and arrested until a formal requisition can be made
by the proper authority, is
1 Voorhees' Case, 32 N. J. 147.
2 Adams' Case, 7 Law Rep. 386.
3 Certain Fugitives, 24 Am. Jur. 226.
4 Ex parte Greenough, 31 Vt. 279.
5 Kentucky v. Dennison,24 How. 107; Comm. v. Green, 17 Mass. S15;
18 Alb. L. J. 207 ; Morton v. SKlnner, 48 Md. 215; Bums* Case, 112 Mass.
410; Wright v. Deacon, 5 Serg. & B. 62; People v. Braidy, S6 N. Y. 187;
Ex parte Clark, 9 Wend. 212; Ex parte Greenough, 31 Vt. 279.
6 InreFetter, 3Zab. 311.
7 Johnson v. Riley, 13 Ga. 97; In re Clark, 9 Wend. 221; Common-
wealth V. Daniels, 6 Fa. L. J. 428; Hayward'9 Case, 1 Am. L. J. 231.
8 Kentucky v. Dennlson, 24 How. 99.
9 Kentucky v. Dennlson, 24 How. 100.
10 Voorhees* Case, 32 N. J. 147.
11 Voorhees* Case, 32 N. J. 147 ; People v. Brady, 56 N. Y. 182 ; Ex parte
Hughes, PhiU. (N. C.) 57.
12 Kentucky v. Ohio, 24 How. 103; Johnson v. Blley, 13 Oa. 183.
13 Gardner's Case, 2 Johns. 477: Comm. v. Deacon, 10 Serg. «& R. 135;
Dow's Case, 6 Hai*. 39; In re Fetter, 3 Zab. 311; State v. Buzine, 4 Har.
672; In re Clark, 9 Wend. 22i; Goodhue's Case, 1 City H. Rec. 153.
Demand for Burrender.— The demand and accom-
panying charge are conclusive as to the criminality of the
offense. 1 Where the indictment substantially charges a
criminal offense, the court will not go behind it, nor in-
quire into the circumstances. 2 A copy of the indictment
authenticated by the governor is conclusive.^ The pre-
cept is prima facie evidence for the protection of the
agent of the truth of the recitals.* The executive au-
thority of the State is not authorized to make demand
unless the party is charged in the regular course of judicial
proceedings. fi The whole effect of the Constitution is to
confer on each member of theUnion a right to demand from
every other member a fugitive, and to make obligatory
the surrender which was before discretionary. ^ The right
to claim the surrender of a fugitive can be carried into
effect only through the medium of laws and the interven-
Digitized by LaOOQ IC
289 PRIVILEGES OF CITIZENS. Art. IV» § 2
Hon of iimsistrates.7 The Constitution does not assume
to dealiwitfi the question before the proper executive de-
mand has been made, nor undertake, in the absence of
demand; to define the duties nor limit the authority of the
State within which the fugitive may be found.s
1 Johnson v. Biley, 13 6a. 133; Kentucky v. Ohio, 24. How. 100: £x
parte Glark, D-Wend. 212; People v. Brady, 56 N. Y. 182.
2 Taylor «. Talntor, 16 Wall. 366; 36 Conn. 242; Kentucky v. Ohio, 24
How. 66; Klngstranr's Case, 106 Mass. 223: Brown's Case, lU Mass. 49»s
Voorhcies' Caae* 32 K. J. 141 : In re Claik, & Wend. 212; Johnson v. Biley,
13 Oa. d7; In re Greenough, 31 Vt. 279.
3 Kentucl^ v. Ohio, 24 How. 66; Taylor v. Taintor, 16 Wall. 366;
4 Commonwealth v. Hall, 9 Gray, 267.
5 Kentucky «. 0|iio, 24 How. 66.
6 In re Fetter, 23 N.J. 311.
7 Commonwealth v. Tracy, 46 Mass. 536.
8 Ex parte White, 49 Cal. 433; Ex parte Gnbreth, Ibid. 435; Com-
monwealth V. Tracy, 46 Mass. 536.
Surrender of fugitives.— The duty to surrender is
not one resting in discretion, it is obligatory on the States.^
So far as seeing that the case is a proper one, the governor
acta judicially.2 The governor or executive authority of
the State or Territory to which the fugitive has fled shall;
upon demand, deliver him np,8 and the State upon which
the demand is made cannot look behind the indictment or
affidavit in which the crime against the State is charged.^
The delivery up of fugitives from justice is not an ordl-r
nary exercise of the police powers of the State. ^ The
States may pass laws auxiliary to the provisions of the
Constitution.^ In case of a conflict ot jurisdiction be-
tween two States, the surrender may be postponed.*^ A
law authorizing the arrest of a fugitive from justice be-
fore a demand for his surrender has been made, and his
detention for a reasonable time to afford an opportunity
for such demand, is not in conflict with this section.^
Congress has the power to vest in any national officer au-
thority to cause the arrest and to surrender the fugitive on
the proper requisition.^ A State law intended to aid in
the enforcement of the act of Congress relating to the sur^
render of fugitives is valid ;io so, a law requiring the
officer makmg the arrest to take the party before the
nearest judge tor identification is valid; " so, a law which
makes it the duty of the executive to issue the warrant
upon a proper requisition is constitutional. ^^ state courts
cannot control tne executive discretion, nor compel the
Digitized by LaOOQ IC
Art. IV, § 2 PBIVILEGES OF CITIZENS. 240
surrender of a fugitive; but the executives having acted,
its discretion may be inquired into.^^ Foreign extradition
jurisdiction is purely political, and belongs to the Execu-
tive of the National Government, i* A State cannot reg-
ulate the surrender of fugitives from justice to foreign
countries, although no action has been taken by the Fed-
eral Government. IS A law allowing fugitives from jus-
tice to be arrested and delivered up to the State having
jurisdiction, is not in conflict with this provision, is a
State may retain a fugitive from justice, although his
arrest was without legal authority. i* This provision is in
the nature of a treaty stipulation between the States, and
equally binding on each and all the officers thereof, even
in absence of congressional legislation, is
1 Kentucky v. Dennison, 24 How. 103 : Taylor v. Taintor, 16 Wau. 370 ;
Johnston v. Riley, 13 Ga. 136; Matter of Briscoe, 6i How. Pr. 422; State
V. Schleiman, 4 Har. 577; State v. Buzine, Ibid. 672: Commonwealth v.
Green, 17 Mass. 647; Voorhees' Case, 32 N. J. 146; In re Fetter, 3 Zab.
811; Work v. Carrington, 34 Ohio St. 64; Wyeth v. Bichardson, 10 Gray,
240.
2 In re Greenongh, 31 Vt. 279.
3 Bums' Case, 112 Mass. 409.
4 Johnston v. Riley, 13 Ga. 97: Voorhees* Case, 32 N. J. 145.
5 Holmes V. Jennison, 14 Peters, 540.
6 Holmes v. Jennison, 14 Peters, 540; Moore v. Illinois, 14 How. 21;
Matter of Romaine, 23 Cal. 585 ; Ex parte Gubreth, 49 CaL 436 ; £x parte
Bosenblat, 61 Cal. 285; Robinson v. Flanders. 29 Ind. 10; Ex parte
Smith, 3 McLean, 121 ; Comm. v. Hall, 76 Mass. 262; Comm. v. Tracy, 46
Mass. 536.
7 Hagan v. Lucas, 10 Peters, 400; Taylor v. Carryl, 20 How. 584; Tay-
lor V. Taintor, 16 Wall. 366; 36 Conn. 242; Ex parte Jenkins, 2 Am. L. B.
144; In re Briscoe, 51 How. Pr. 422; State v, Allen, 2 Humph. 258; In re
Trontman, 4 Zab. 604.
8 Ex parte Cubreth, 49 Cal. 436; Ex parte White, 49 Cal. 434; Dow's
Case, 6 Har. 39; State v. Buzine, 4 Har. 572; Goodhue's Case, 1 Wheel.
C. C. 427; 1 City Hall Rec. 153; Gardner's Case, 2 Johns. 477: Conunon-
wealth V, Wilson, Phila. 80; Commonwealth v. Deacon, 10 Serg. & B.
135; In re Fetter, 3 Zab. 311 ; People v. Schenck, 2 Johns. 479; People v.
Wright, 2 Caines. 213; Ex parte Hey ward, 1 Sand. 701.
9 Voorhees' Case, 32 N. J. 145.
10 Commonwealth v. Hall, 76 Mass. 262.
11 Robinson v. Flanders, 29 Ind. 10.
12 Ex parte Smith, 3 McLean, 121.
13 Ex parte Manchester, 5 Cal. 237.
14 Holmes v. Jennison, 14 Peters, 540; In re Eaine, 14 How. 103; In re
Washburn, 4 Johns. Ch. 106: Conmionwealth v. Green, 17 "Mass. 546;
Commonwealth v. Deacon, 10 Serg. & R. 125; In re Fetter, 3 Zab. 811.
15 People V. Curtis, 50 N. Y. 321. See Holmes v. Jennison, 14 Peten,
640.
16 Ex parte White, 49 Cal. 434; Ex parte Culbreth, 49 Cal. 436.
17 New Jersey v. Noyes, 11 Ch. L. N. 9.
18 Ex parte Hibler, 43 Tex. 197.
Digitized by LaOOQ IC
241 PBTVUJBQXS OF CITIZSN8. Art. IV, § 2
8 jVo person held to service or labor in one State, under the
laws thereof, escaping into another, shall, in conseqttence of
any law or reg%Uation therein, he discharged from such serv-
ice or labor, but shaU be delivered up on claim of the party
to whom such service or labor may be due.
Fa^tiveB from labor.—Gongress has exclusive power
to legislate concerning fagitives from labor. ^ The act of
Congress in relation to the surrender of fugitives in the
Korthwest Territory is constitutional.* The Constitution
and laws do not confer, but secure, the right to reclaim.^
The word "person" includes slaves,^ and apprentices,^
but it does not extend to a slave voluntarily carried by
his master into a free State.* The words " in one State"
extend to the Territories, the District of Columbia, and
the Indian i?erritory.7 The words "shall be delivered
up" contemplate summary and informal proceedings. ^
T^e Constitution recognizes the plenary and exclusive
power of States over the status of slaves within their terri-
tory, subject to the express limitation in case of fleeing
from service.^
1 Prlgff V. Commonwealth, 16 Peters, 539 : Jones v. Yanzandt, 5 How.
215: 2 McLean, 612; In re Martin, 2 Paine, 348; In re Susan, 2 Wheel.
Cr. Cas. 594.
2 Jones v. YaDzandt, 5 How. 230; Johnson v. Tompkins, Bald. 571*,*
Hin V. Low, 4 Wash. C. G. 326; Glenn v. Hodges. 9 Johns. 67 ; Comm. v.
Aves, 18 Pick. 215; Jack v. Martin, 12 Wend. 311 ; Anonymous, 6 Op. Att.
Gen. 713; Wright v. Deacon, 5 Serg. & B. 62.
8 Ablemanv. Booth, 21 How. 526; 3 Wis. 1; Johnson v, Tompkins,
Bald. 571; The Fugitive Slave Law, 1 Blatchf. 635; Giltner v. Gorham,
4 McLean, 402; Sims' Case, 61 Mass. 285; Long's Case, 3 Am. Law J. 201;
9 H. Y. Leg. Obs. 73; Anonymous, 6 Op. Att. Gen. 713.
4 Lemmon V. People, 20 N. Y. 624.
5 Boaler v. Cummins, 1 Am. L. B. 654.
6 Strader v. Graham, 10 How. 82; Yanghan v. Williams 3 McLean,
530; Miller ». McQuerry,5 McLean, 460; Butler v. Hopper, 1 Wash. C.
C. 499; In re Perkins, 2 Cal. 424; Pierce's Case, 1 West. L. Obs. 14; Kauff
man v. Oliver, 10 Pa. St. 517.
7 Anonymous, 3 Op. Att. Gen. 370; Anonymous, 6 Op. Att. Gen. 302,
304.
6 Prigg V. Commonwealth, 16 Peters, 667; Jack v. Martin, 14 Wend.
507: 12 wend. 511; Sims' Case, 61 Mass. 285; Wright v. Deacon, 5 Serg.
&6.62.
9 Groves v. Slaughter, 15 Peters, 449; Moore v. Illinois, 14 How. 20,
liemmon v. PeopleTzO N. Y. 563; New York v. Milne, 11 Peters, 102.
Dbsty Fed. Cov.— «1.
Digitized by LaOOQ IC
Art. IV, § 3 NEW STATES. 242
Section 8.
New States.
1. Admission of.
2. Power of United States over Territorial and other property.
Sec. 3. i^eio States may he admitted by the Congress
into this Union ; hut no new State shall he foi^med or erected
within the jurisdiction of any other State ; nor any State he
formed- hy the junction of two or more States^ or parts of
. States, withoxit the consent of the legislatures of the States
concerned as well as of the Congress,
Admission of ne'w States.— This clause refers to
and includes new States to be formed out of territory yet
,to be acquired, as well as that already ceded. i The
power to acquire territory by conquest or by treaty^ is
consequent on the absolute grant of power of making
war and making treaties.*'^ New States, when admitted,
have equal sovereignty with the older ones,^ but stipula-
tions imposed by Congress on a new State as a con(ution
of its admission into the Union may be effectual as a
regulation of commerce or other exercise of a conditional
grant of power,* but a stipulation granting municipal
rights of sovereignty would be void and inoperative,^ and
when a condition annexed to a State constitution is legally
and formally rescinded, the powers disclaimed may be
resumed and immediately exercised by the State author-
ities. ^ If Congress, upon application of a Territory, con-
sents to admit it as a State upon condition of certain
alterations in the proposed constitution, which alterations
are accepted, such alterations become part of the State
constitution.'^ The Ordinance of 1787 is of no effect in
any State formed out of the old Northwest Territory, un-
less re-enacted by such State. » The consent of the legis-
latures of the States may be given ui^on conditions which,
if accepted by the United States, are binding upon the Gten-
eral Government. ^ Congress is vested with the sole po-wer
of admitting new States into the Union.^®
1 Scott V. Sandford, 19 How. 612.
2 American Ins. Go. v. Canter, 1 Peters, 542 ; Sere «. Pltot, 6 Cranch,
336; Fleming v. Pa«re, 9 How. 614; Gross v. Harrison, 16 How. 189; Scott
V. Sandford, 19 How. 395. And see Worcester r. Georgia, 6 Peters, 515;
New Orleans v. De Armas, 9 Peters, 224; Holden v. Joy, 17 WalL 211.
3 Pollard Hagan, 3 How. 212; Withers v. Burkley,20 How. 84; 29
Miss. 21; Permoll V. First Municipality, 3 How. 610.
4 Pollard 0. Hagan, How. 229.
5 Pollard V. Hagan, 3 How. 229; Strader v. Graham, 10 How. 82-,
Depew V. Trustees, 5 Ind. 8.
6 Duke V. Navigation Go. 10 Ala. 82.
Digitized by LaOOQ 16
243 TEBKITOBIAL PBOPEBTT. Art. IV, § 3
7 Brittle V. The People, 2 Neb. 196.
8 Pennoll v. First Mimicipallty, 3 How. 610; Streder v. Graham. 10
How. 82.
9 Pollard 17. Hagan, 3 How. 223.
10 Bmtle V. People, 2 Neb. 196.
2 The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States ; and nothing in this
Constitution shall be so construed as to pr^udice any claims
of the United States, or of any particular State.
Territorial property.— " To dispose of" means to
make sale of the lands, or otherwise to raise money from
them. I The power of Congress is not limited to a sale,
but includes the power to lease; ^J but all disposition of
the lands must be by authority of Congress.^ So, a mill*
tary officer at the head of a provisional government is
not authorized to make a grant of public lands. ^ It may
dispose of the public lands as homesteads secured from
debts prior to issue of patent. ^ This clause does not con-
fer on Congress any power to grant the shores of navigar
ble waters, or the soil under them, within a State. ^
** Needful rules" means appropriate legislation," includ-
ing the passage of all laws necessary to secure the rights
of the tjnited States to the public lands, and to provide
for their sale, and to protect them from taxation. ^ It can
make all needful rules and regulations, but only for the
disposition and protection of lands within the limits of a
State.^ So, it may provide that all contracts and trans-
fers relating to such land, made before the patent issues,
shall be void.^'^ It has the absolute right to prescribe the
times, conditions, and modes of transfer of the pablic
domain, and to whom transfers shall be made,^^ and it
has the sole power to declare the dignity and effect of
United States titles ;^'^ and when the acts of Congress
make a patent necessary to complete the title, no State
can make anything else evidence of title, ^^ nor can a State
pass a law depriving a patentee of the possession of prop-
erty by reason of delay in the transfer of title after initi-
ation of proceedings for its acquisition.!'* "Territory" is
equivalent to the word "lauds," is and the words "re-
specting the territory" refer only to the ** territory"
o^vned oy the United States at the time of the adoption
of the Constitution ;i«» subsequently acquired territory is
subject to the legislation of Congress as an incident to its
ownership ;i^ the right to govern is the inevitable conse-
d by Google
Akt. IV f § 3 TERBITOBIAL PBOPEBTT. 24i
quence of the right to acquire.^^ In legislating for the
Tierritories, Congress exeroises the combined powers of
the General and of the State Governments.^^ It has the
absolute power of governing and legislating for the Terri-
tories, and may give jurisdiction to territorial courts. 20 but
such courts are not courts of the United States.21 The
general jurisdiction over the place subject to this grant of
power adheres to the Territory as a portion of the States
not yet given away.^a Where territory has once been
solemnly ceded by the Indians it cannot afterwards be
treated as Indian country.^*
1 Scott V. Sandford, 19 How. 615.
2 U. S. V. Gratiot, I McLean, 454; 14 Peters, 526; Shawks' Case. 4 Op.
▲tt.-Oen. 487.
3 U. S. V. NIcol, 1 Paine, 648; Seabury v. Field, 1 WalL 1; U. S. v.
Fitzarerald, 15 Peters. 407 ; McConnell v. WUcox, 2 111. 344.
4 Seabury v. Field. 1 McAll. 1.
5 MiUer v. Little, 47 Cal. 348; Russell v. Lowtb, 21 Mluu. 167; GUe «.
HaUock, 33 Wis. 523.
6 Pollard v. Hagan, 3 How. 212.
7 Scott V. Sandford, 19 How. 615.
8 Pollard V. Hagan, 3 How. 212.
9 U. S. V. Railroad Br. Co. 6 McLean, 517; Rose v. Backland, 17 lU.
809; Dyke v. McVey, 16 Dl. 41.
10 Dyke v. McVey, 16 Dl. 41: Rose v. Buckland, 17 Dl. 309.
11 Irvine v. MarshaU, 20 How. 558; Gibson v. Chouteau, 13 Wall. 92.
12 Bagnell r. Broderick, 13 Peters, 436.
13 Wilcox V. Jackson, 13 Peters, 498.
14 Gibson V. Chouteau, 13 Wall. 92.
15 U.S.r. Gratiot, 14 Peters, 537.
16 Scott V. Sandford, 19 How. 442.
17 Amer. Ins. Co. v. Canter, 1 Peters, 511.
18 Amer. Ins. Co. v. Canter, 1 Peters, 511; U. S. v. Gratiot, 14 Peters,
526; 1 McLean, 454; Scott v. Sandford, 19 How. 393; Cross v. HiUTison,
16 How. 164.
19 Amer. Ins. Co. v. Canter, 1 Peters, 511.
20 Sere v. Pitot, 6 Cranch, 332; Leitersdorfer v. Webb, 20 How. 182.
21 Hunt V. Palas, 4 How. 589: Clinton v. Englebrecht, 13 Wall. 448,
explaining Orchard v. Hughes, 1 WalL 73.
22 XT. S. V. Bevans, 3 Wheat. 337 ; Smith v. Maryland, 18 Bow. 71 ; The
Ware v. Hyer. Blatchf. & H. 235; 3 Paine, 131.
28 Clark V. Bates, 1 Dakota, 42.
Digiti^d by L^OOQ IC
245 STATE GOYEBNMEITT. Art. ZV, § 4
Territorial |;overnxnent.~ Congress may goyem the
Territories mediately or immediately, either by the crea-
tion of a territorial government or by the passage of laws
directly operating upon the Territory.^ The pjower of Con-
gress to establish a territorial government is implied from
the necessity of the protection of the rights of person and
property beyond the limits of any State ;^ the form of
such government resting in the discretion of Congress,
within the definition and limitations of the Constitution.*
A territorial legislature is a creation of Congress, and
derives its power therefrom,^ and its acts will not avail
if adopted after its admission as a State.^ A territorial
legislature may pass an act authorizing judgment against
sureties on an appeal bond, as well as against appellants.^^
It has no power to deprive United States courts of chan-
cery as well as common-law jurisdiction. "^ Territorial
courts are invested with powers conferred by Congress in
the exercise of those general powers which Congress pos-
sesses over the territory .8 They have the power to issue
writs of habeas corpus like Federal courts.^ Where the
organic act confers only the power ** to change " the loca-
tion, the legislature has no power to fix the location of
the seat of government, i®
1 Edwards v. Panama, 1 Oreg. 418.
2 TJ. S. V. Gratiot, 14 Peters, 537; U. S. v. R. B. Bridge Co. 6 McLean,
517; State V. Navigation Co. 11 Mart. 309.
3 Scott V. Sandford, 19 How. 393; Ex parte Perkins, 2 Cal. 424.
4 Treadway v. Schnauber, 1 Dakota, 236.
5 State V. Hitchcock. Kaus. 178.
6 Beall v. New Mexico, 16 WaU. ft35.
7 Dnnphy «. Kleinsmith, 11 Wall. 614.
8 American Ins. Co. v. Canter, 1 Peters, 511; Stacy r. Abbott, 1 Am.
L. T. 84.
9 U.S.«.Burdick,l Dakota, 142.
10 Seat of Goy. 1 Wash. Terr. 135.
SECTION 4.
Bepubliean form of Qovemment guaranteed. Protection against invasion.
Sec. 4. 1 The United States shaM guarantee to every State
in this Union a republican form of government^ and shall
protect each of them against invasion; and on application of
the legislature^ or of tfie executive^ {when the legislature can-
fMt be convened) against domestic violence.
Digitized by LaOOQ IC
Art. rV, § 4 STATE GOVERKMEKT. 246
It is for Congress to decide what government is the es-
tablished one in a State, and whether it is republican or
not, and its decision is binding on every other department
of the Government.! Congress may delegate to the Presi-
dent the power to decide whether a State government is
the duly constituted government of that State.2 The State
here meant must be a member of the Union,* a people or
community.* No particular government is designated as
republican, nor is the exact lorm in any manner espec-
ially indicated.^ The term "form of government*' cast
upon Congress the duty, upon the suppression of the Re-
bellion, to re-establish the broken relations of States which
had seceded.* It is the only department of Government
authorized to reorganize and reconstruct the rebellious
States."^ In the exercise of this power a discretion as to
the means is necessarily implied.* Congress may require
that the new State constitution shall adopt any measure
which Congress has the power to enact and enforce.^
Where a rebellious State frames a new constitution,
which is approved by Congress, such State is estopped to
deny its validity ; ^^ but the approval of such constitution
does not make it an act of Congress. ^^
1 Lutherp.Borden.THow. 42: Texas r. White,? Wall. 730. And see
U. S. V. Bho(le8, 1 Abb. U. S. 47: £x parte Coupland, 26 Tex. 434; White
V. Hart, 13 Wall. 640 ; 39 Ga. 306.
2 Luther v. Borden, 7 How. 44.
3 Scott V . Jones. 5 How. 377 ; Cherokee Nation v. Oeorgla, 5 Peters, 18.
4 Texas t>. White, 7 WaU. 700.
6 Minor v. Happersett, 21 Wall. 162.
6 Texas t>. White, 7 Wall. 727.
7 Powell V. Boon, 43 Ala. 469.
8 Texas t>. White, 7 WalL 727.
9 Hardeman v. Downer, 39 Oa. 425.
10 White V. Hart, 13 Wall. 646; 39 Ga. 306.
11 White V. Hart, 13 WaU. 646; 39 Ga. 306; Marsh v. Burroughs, 1
Woods, 463 ; Homestead Cases, 23 Gratt. 266 ; In re Kennedr, 2 Rich. 116.
Digitized by LaOOQ IC
247 AMENDMENTS. Art. V, § 1
ARTICLE V.
AMKNDimrTS.
Section 1.
Manner of making Amendments to Constitution.
1 The Congress, tokenever two-thirds of both Houses shall
deem it necessary, shall propose Amendments to this Consti-
tution ; or, on the application of the legislatures of two-thirds
of the several States, shall call a Convention for proposing
Amendments^ which, in either case, shall be valid to all intents
and purposes, as part of this Constitution, when ratified by
the legislatures of three-fourths of the several States, or by
conventions in three-fourths thereof, as the one or the other
mode of ratification may be proposed by the Congress ; pro-
vided^ that no Amendment which may be made prior to the
year one thousand eight hundred and eight shall in any
manner affect the first and fourth clauses in the ninth Section
of the first Article ; and that no State, witlwut its consent,
shall be, deprived of its equal suffrage in the Senate.
Amendments. — No limit can be imposed on the peo-
ple in their sovereign capacity in amending the Constitu-
tion, i The approval by the President of a proposed
amendment is not necessary.^ All amendments adopted
at the first session of Congress, consist iDg of the first ten,
were intended to apply to the General Government only,
and not as restrictions on the' State govemments.8
1 £x parte Griffin, 25 Tex. Supp. 623 ; Chase, 364.
2 HoUingsworth ». Virginia, 3 Dall. 378.
3 Barron v. Baltimore, 7 Peters, 2
469; Bald. 424; Fox v. 01iio,5 How.
76; Withers v. Buckley, 20 How. 90; 5
Wall. 535; North Mo. R. R. Co. v.
Edwards v. ElUott, 21 WaU. 657; Tw
325; Pervearp. Commonwealth, 5 W
S. 562; 1 Woods, 308; U. S. v. Rhode
Conn. 243; Jackson v. Woods, 2 Cow.
Barker v. People, 3 Cow. 686: Hill v.
Oratt. 139; Bryan v. State, 4 Iowa, I
Commonwealth tJ.HItchlngs,71Mass
71 Mass. 486; State v. Shricker, 29 M<
State V. Paul, 5 R. 1. 185; James v. C
liincoln v. Smith, 27 Vt. 328; Llvingsi
Smith, 10 Wend. 449; Lea v. Tillotsoi
Digitized by LaOOQ IC
^rt. VI, § 1 GE17EBAL PBOYISIONS. 248
ARTICLE VI.
PBOHISOUOUS PROVISIONS.
Section i.
General provisions.
1. Debts. Existing obligations ratified.
2. Supreme law or the land.
8. Oath to support Constitution. No religions test.
1 All debts contracted and engagement sentered into, before
the adoption of this Constitution, shall be as valid <igainst the
United States tinder this Constittitiony as under tile Confed-
eration.
The debts of the first Confederation were assumed.
Terrett v. Taylor, 9 Cranch,60; Kelly v. Harrison. 2 Johns. Cas. 29;
Jackson v. Lampshire. 3 Johns. Cas. 109.
2 This Constitution, and the laws of the United States
which shall be made in pursuance thereof; and all treaties
made, or lohich shall be made, under the authority of the
United States, shall be the supreme laxo of tlie land; and the
judges i7i evei"y State shall be bound thereby, anything in the
Constitution or laws of any State to the contrary notwith-
standing.
Government supremacy.— The obje^it of the Consti-
tution was to establish a Government wliich to the extent
of its powers should be supreme ^ within its sphere of
action,- the Constitution being the paramount law of
the land,8 and the Ordinance of 1787 being a part thereof.*
The Constitution, treaties, and laws made by the General
Government on the rights, duties, and subjects specially
enumerated and confided to their jurisdiction are exclu-*
sive and supreme as well by express provisions as by nec-
essary implication.fi The Constitution is by this clause
made a part of the organic law of each State. <* The Gov-
ernment of the United States and that of the States are to
be considered as parts of the same system. ^ The laws of
the United States are supreme only when made in pursu-
ance of the Constitution, 8 and an act of Congress repug-
nant to th€ Constitution is void.^ From the supremacy of
Digitized by LaOOQ IC
9l9 OENEBAI. PBOVISIONS. Alt. VI, § 1
the Constitntion and laws of the ITnited States it neces-
sarily results that the interpretation of the laws by the
highest tribunal created by the law itself, must be equally
supreme over the constitutions and laws of the several
States. 1® The law of a State, though enacted in the exer-
cise of powers not controverted, if they interfere with the
laws of Congress must yield to them.ii A treaty has the
binding force of a law.i^
1 Dobbins v. Gotnmrs. of Erie Co. 16 Peters, 43A: Ableman v. Booth,
21 How. 520; 3 Wis. 1 ; Cohens v. Virginia, 6 Wheat. 264; U. S. v. Bhodes,
1 Abb. U. S. 44.
2 McCnUoch v. Maryland, 4 Wheat. 316.
4 Pollard V. Klbbe, 14 Peters, 417.
5 Bodge V. Woolsey, 18 How. 331 ; Farmers & M. Bank v. Deering, 91
XT. S. 29; Farrlngton v. Tennessee. 95 U. S. 685: Pensacola T. Co. v.
West. U. Tel. Co. 96 U. S. 1 ; Sinis' Case, 7 Cush. 729; U. 8. v. Rhodes, 1
Abb. U. S. 44.
6 Taylor v. Talutor, 16 WaU. 366 ; Matter of Bomaiue, 23 CaL 585.
7 Steams v. U. S. 2 Paine, 300; GUmer v. Lime Point, 18 Cal. 229.
8 Marbury v. Madison, 1 Cranch, 137; McCuUoch v. State, 4 Wheat.
816.
9 Marbury v. Madison, 1 Cranch, 137 ; Ableman v. Booth, 21 How. 620 :
8Wls. 1.^
10 Warner v. The Uncle Sam, 9 Cal. 697.
11 Glbbens v. Ogden, 9 Wheat. 1; 17 Johns. 488; 4 Johns. Ch. 160;
Brown r. State, 12 Wheat. 419: Sinnot v. Davenport, 22 How. 227; Bank
of Commerce v. New York, 2 Black, 620; 23 N. Y. 192; 32 Barb. 509.
12 The British Prisoners. 1 Wood. & M. 72; U. S. v. New Bedford
Bridge, 1 Wood. & M. 449.
Treaty as supreme law. — A treaty is a solemn
agreement between nations.^ It binds the nation in the
siSg^^gfite and all its subordinate authorities and judges
of every State.2 When duly ratified, a treaty is the
supreme law «— the law of the land.^ It is to be regarded
as equivalent to an act of Congress whenever it operates
of itself, without the aid of any legislative provision;
and where a treaty and an act of Congress are in conflict,
the latest in date must control.^ Where money is re*
quired to be appropriated to carry out a treatv, the con-
currence of Congress is required to give it effect.* Whether
an act of Congress shall prevail over a treaty is a question
solely of municipal law, as distinguished from pubUc law.''
It is supreme only when made m pursuance of that au-
thority which has been conferred upon the treaty-making
department, and in relation to subjects over which iti has
Digitized by LaOOQ IC
Art. VI, § 1 OBNEBAL PBOYISIONS. 260
jurisdiQtion.s What is forbidden by the Constitution can-
not be.done by treaty.^ Congress has the power to repeal
a law contained in a treaty when it relates to subjects
placed under the le^slative power, w .When the terms of
a stipulation import a contract, a treaty addresses itself
to the political, and not the judicial, department, and
Congress must execute it before it becomes a rule of
court. 11 No right can be incident to one department
which necessarily goes to the suspension of a right inci-
dent to another.i^ After a treaty nas been executed and
ratified, courts cannot go behind it for the purpose of
annulling its operation. ^^ Federal and State judges a,re
bound to determine any constitution or laws of any
State contrary to any treaty null and void. ^* The validity
of a treaty is necessary and voluntary. The neicessary
validity is of a judicial nature, and the voluntary of a
Solitical nature. 15 If the Supreme Court has the power to
eclare a treaty void, it will exercise it only in a clear
case.is The word " treaty" is applied to Indians as well
as to other nations. i^
1 Foster v. Nellson, 2 Peters. 314; Worcester v. State, 6 Peters, 515;
Taylor t;. Morton, 2 Curt. 454.
2 Ware v. Hylton, 2 Dall. 199; Marbury t?. Madison, 1 Cranch, 176;
Worcester v. Georgia, 6 Peters, 675; Calder v. Bull, 3 Dall. 386; Owlngs
r. Norwood, 5 Cranch, 348; Satterlee v. Matthewson, 2 Peters, 413; Ex
parte Garland, 4 Wall. 399; Cummlngs v. Missouri, 5 Wall. 829; People
V. Gerke, 4 Amer. L. R. 604; 6 Op. Att.-Gen. 291; Fellows v. Deuulston,
23 N. Y. 420.
3 Pollard v. Klbbe, 14 Peters, 414 ; Doe v. Branden, 16 How. 635; Wil-
son V. Wall, 34 Ala. 288.
4 Pollard v. Klbbe, 14 Peters, 414; Rhode Island r. Massachusetts, 12
Peters, 657.
5 Foster v. Nellson, 2 Peters, 314; U. S. v. Arredondo, 6 Peters, 691;
U. S. V. Percheman, 7 Peters, 51; Gordon v. Kerr, 1 Wash. C. C. 322.
6 Turner v. Missionary Union, 5 McLean, 344.
7 Taylor v. Morton, 2 Curt. 454.
8 People V. Naglee, 1 Cal. 231.
9 Cherokee Tobacco, 11 Wall. 616: 1 DHL 264; People v. Washinprton,
36 Cal. 658; U. S. v. Rhodes, 1 Abb. U. S. 43.
10 Talbot V. Seaman, 1 Cranch, 1; Ware v. Hylton, 3 Dall. 199; U. S. t>.
Tobacco Fact. 1 Dill. 266; Webster v. Reid, 11 How. 437; Morris, 467;
Ropes t?. Clinch, 8 Blatchf. 304; Taylor r. Morton, 2 Curt. 434; Scott v.
Sandford, 19 How. 629; Gray v. Clinton Br. 10 Wall. 454; Wool. 150;
Cherokee Tobacco, 11 Wall. 621; Ropes v. Clinch, 8 Blatchf. 804; Backer
V. State, 7 Bank Reg. 257.
U Foster V. Nellson, 2 Peters, 314; U. S. v. Ferrelra, 13 How. 40;
Turner V. Missionary Union, 5 McLear "" "' — — ^- ., ^ .
454; In re Metzger, I Park Cr. Cas. 108.
12 Taylor v. Morton, 2 Curt. 454 ; Jones v. Walker, 2 Paine, 688: Wilson
c. Wall, 34 Ala. 288. . » I
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251 OEMERAL PBOVISlOirS, Art. VI, § 1
13 FeUoira V. BUMskamlth, 19 How. 366.
U Ware v. Hylton, 3 Dall. 199; Society t>. New Hayen, 8 Wheat. 464.
15 Jones V. Walker, 2 Falne. 688.
16 Ware v. Hylton, 3 DalL 199.
17 Worcester v. Georgia, 6 Peters, 515; Turner v. Missionary Union,
5 Mcliean, 344 ; Fellows v. Denniston, 23 N. Y. 420.
' Tlie Senators and Representatives before mentionedy and
the members of the several State legislatures, and all execvr
tive and judicial officers, both of the United States and of the
several States, shall be bound by oath or affirmation to sup-
port this Constitution ; but no religious test sfuUl ever be re-
quired as a qualijication to any office or public trust under
the United States.
Oath of office. — This provision is merely directory,
and the omission to take the oath does not affect the Talid-
ity of their legislation, i The pledge required is to support
this Constitution.^ The legislature may superadd such
other oath of oflace as its wisdom may suggest.^ A referee
is not such an officer as is required to take this oath.^ The
provisions in a State constitution requiring a test oath are
void.5
1 Hill V. Boyland, 40 Miss. 618. But see Thomas v. Taylor, 42 Miss.
651; White v. McKee, 19 La. An. 111.
2 Ableman v. Booth, 21 How. 525.
8 McCulloch V. Maryland, 4 Wheat. 416 ; V.S.v. Rhodes, 1 Abb. U.
8.43.
4 Underwood v. McDuffle, 15 Mich. 361.
5 Ex parte Garland, 4 Wall. 398; Andrew v. Bible Ac. Soci. 4 Sand.
156: Ayers v. M. E. Church, 3 Sand. 351.
d by Google
Art Vn, I 1 SATIFICATfQlC, 26SI
ARTICLE Vn.
RATIVIOATIOir OF COirSTITUTIOlT.
SECTION 1. .
What 8i0lcientfor ratification.
^ITie ratification of the conventions of nine States shall be
svffl/dent for the establishment of this Constitution between
the States so ratifying the same.
Note. — The Constitution was ratified by the several
States in the following order : Delaware, December 7th,
J787 ; Pennsylvania, December 12th, 1787 ; New Jersey,
December 18th, 1787 ; Georgia, January 2nd, 1788 ; Con-
necticut, January 9th, 1788 ; Massachusetts, February
6th, 1788 ; Maryland, April 28th, 1788 ; South Carolina,
May 23rd, 1788 ; New Hampshire, June 21st, 1788 : Vir-
mnia, June 26th, 1788; New York, July 26th, 1788; North
DaroUna, November 21st, 1789; and Bhode Island, May
29th, 1790.
Done in ConventioUy by the unanimous consent of the States
present, the seventeenth day of September, in the year of
our Lord one thousand seven hundred and eighty -seven,
and of the independence of the United States of America
the twelfth. In witness whereof we have hereunto sub-
scribed our names.
GEO. WASHINGTON,
President, and Deputy from Virginia.
New Hampshire. Connecticut.
JOHN LANG DON, WM. SAMUEL JOHNSON,
NICHOLAS GILMAN. ROGER SHERMAN.
Massachusetts, New York.
NATHANIEL GORHAM, ALEXANDER HAMILTON.
RUFUS KING. v«.xi^L^f^xi« ^ juxjjxifxi.
Digitized by LaOOQ IC
New Jersey.
WILLIAM LIVINGSTON,
DAVID BREARLEY,
WILLIAM PA TER80N,
JONATHAN DAYTON.
Pennsylvania.
BENJAMIN FRANKLIN,
THOMAS MIFFLIN,
ROBERT MORRIS,
GEORGE CLYMER,
THOMAS FITZ SIMMONS,
JARED INGERSOLL,
JAMES WILSON,
QOUVERNEUR MORRIS.
Delaware.
GEORGE READ,
GUNNING BEDFORD,.Jr.,
JOHN DICKINSON,
RICHARD B AS SETT,
JACOB BROOM.
WERR. 253
Maryland.
JAMES McHENRY,
DANIEL, of ST. THO.JENIFER,
DANIEL CARROLL.
Virginia.
JOHN BLAIR,
JAMES MADISON, Jr.
North Carolina.
WILLIAM BLOUNT,
RICHARD DOBBS SPAIGHT,
HUGH WILLIAMSON.
South Carolina.
JOHN RUTLEDGE,
CHARLES C. PINCKNEY,
CHARLES PINCKNEY,
PIERCE BUTLER.
Georgia.
WILLIAM FEW,
ABRAHAM BALD WIN.
Attest:
WILLIAM JACKSON, Secretary.
Dbstt Fed. CJon.— ««.
Digitized by LaOOQ IC
jtUn- 1» S 1 rBBEDOM OF SPEBOH. 2M
Amendments
To TH3S Constitution op the Uiotbd Btaxbs, Rat-
iFiBD According to the Pbovisions of the
Fifth Abticle of the Fobbooino
Constitxjtion.
ABTICLE I.
BESTBIOTIONS ON POWER OF COITOBBSB.
SBOTION 1.
Religious libertf^freedam c/ sjftech— right of petition.
Congress shall make na law respecting an establishment of
religion^ or prohibiting the free exercise thereof; or abridg-
ing the freedom of speech or of the press ; or the right of tne
people peaceably to assemble^ and to petition the Government
for a redress of grievances.
Amendment, proposed ^h S^tembenVBi; ratified Ibth December » 1191.
Religion.— This Article, and the clause in the Vlth
Article, that " no religious test shall ever be required as a
qualification " for office, are the only provisions in the Fed-
eral Constitution upon the subject or religion; the whole
power over the subject is left with the States ; i nor is there
any inhibition placed on the States. ^ The constitutional
guaranty of relieious freedom applies only to Congress
and not to the States ;d and it takes from Confess the
power to legislate in respect to mere religious opinion and
oelief , but leaves it free to act as to the violation of social
duties, and as to peace and good order. '^ Congress has no
power to punish for disturbance of public assemblies of
peaceable citizens, the preservation of the peace is a pre-
rogative of the several States.^ These rights existed be-
fore the Constitution, and this amendment merely pro-
hibits their abridgment.^ States may regulate the ob-
servance of the Sabbath. 7
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255 BIGHT TO BBAB ARMS. Alii. Iltj^'l
1 Ex parte Garland, 4 Wall. 397.
2 Permbli v. First Municipality, 3 How. 609; Ex parte Garland, 4
Tt all. 399.
3 U. S. V. Rhodes, 1 Abb. U. S. 43: Barron v. Baltimore, 7 Petras,
243; Withers r. Buckley, 20 How. 64; Murphy v. People, 2 Cowen, 815.
4 Reynolds «. U. S. 7 Am. L. R. 9.
5 U. S. V. Cruikshank, 92 U. S. 542; 1 Woods, 306.
6 U. S. V. Gruikshank, 92 XT. S. 542; 1 Woods, 308.
7 Commonwealth r. Has, 122 Mass. 42; Specht v. Commonwestltb«8
Pa. St. 312: Frolicksteln v. Mobile, 40 Ala. 725; Ex parte AndrewsTiS
CaL 678; Neuendorfl «. Duryea, 69 N. Y. 557.
ARTICLE n.
RIOHT TO BEAR ABMS.
SECTION 1.
Bight not to be denied to people.
A weU-regulated militia being necessdry to the security of a
free State, the right of the people to keep and bear arms slwU
not he infringed.
Amendment, proposed 25th September, 1789; ratified I5th December,ndl.
Right to bear arms.— The right to bear arms is not
lierein granted, but only protected from infringement.^
This provision is restrictive only of the powers of the
Federal Government; 2 it does not prevent the regulation
of the subject by States, as the passage of a law to pre-
vent carrying concealed weapons, 8 or for prescribing pun-
ishment for an assault with dangerous weapons;* but
a statute prohibiting the bearing of arms openly is un-
constitutional.^ This clause Is based upon the idea that
the people cannot be oppressed or enslaved who are not
first disarmed. «
1 TJ. S. V. Crulkshank, 92 U. S. 566: 1 Woods, 308.
2 U. S. V. Crulkshank, 92 U. S. 542; 1 Woods, 308; North Carolina 0.
irewsom,5Ired. 250; Andrews v. State, 3 Heisk. 165; Fife v. State, 81
Ark. 455.
3 State V. Buzzard, 4 Ark. 18; Nunn v. State, 1 Qa. 243; Louisiana r.
Cbandler,5La. An. 489; Louisiana t?. Smith, 11 Ibid. 633; Louisiana r,
Jamell, 13 Ibid. 399; £nglif>h v. Texas, 35 Tex. 473 ; Comm. v. McNulty,
8 Phila. 610; Bliss v. Couim. 2 LItt. 90; Wright r. Comm. 77 Pa. St. 470.
And see State v. Keid, 1 Ala. 612; State v. Mitchell, 3 Blackf. 229; Coch-
ran V. State, 24 Tex. 394.
4 Cockrum v. State, 24 Tex. 394 ; New York v. Miln, 11 Peters, 139.
5 Nunn v. State, 1 6a. 243.
6 Cockrum v. State, 24 Tex. 401.
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Am. ZV, § 1 PERSONAL 8ECUBITY. 266
ARTICLE m.
QUABTBBnrO OV 80LDIXB8.
SSOTION 1.
No soldier to be quartered, etc
No soldier ahcUly in time of pecux^ be wartered in any
house without the consent of the owner, tio» in time af idot^
but in a manner to be prescribed by law.
Amendment, proposed Zath September, 1789; ratified lUh December, 1791.
ARTICLE IV.
pebsonal secubitt.
Section 1.
Unreasonable searches, seizures, and warrants prohibited.
The right of the people tq be secure in their persons^ houses^
papers, and effects, against unreasonable searches and seiz-
ures^ shall not be violated, and no warrants shall issue hut
upon probable cause, supported by oath or affirmation, and
particularly describing the place to be searched, and the per-
sons or things to be seized.
Amendment, proposed 25th of September, 1789 ; rcUified Ibth December,
Searcli, seizure, and 'warrants.— This amendment
was adopted with iutent to restrict and limit the power of
the United States,^ and place the powers under strong pro-
hibitions and checks.2 The security of personal liberty was
such as wisdom and experience demonstrated to be neces-
sary.s The amendment only protects those who are parties
to the Constitution,^ and applies to criminal cases only.^
So, provisions for searches and seizures to aid in the collec-
tion of revenue are not repugnant to this clause. « It does
not prohibit a search or seizure made in attempting to
execute a military order; "^ but an order of the War I)e-
partment directing an arrest without warrant is void.^
A warrant of commitment which does not state some
good cause certain, supported by an oath, is Illegal;^ but
an executive officer can justify his acts by showing a
regular warrant, without snowing that it was founded on
a complaint under oath. It is only necessary that the
Digitized by LaOOQ IC
257 PERSONAL RIGHTS. Am. V, § 1
order or precept shall be lawful on the face of it.^^ A
warrant directing a search in the house of A & Co. will
not justify a search in the house of A.^^ A specilication
of the character, quality, number, weight, or otner circum-
staDces, to distinguish the goods, is necessary .i'-^ * ' And no
warrants shall issue but upon probable cause " refers only
to process issued under the authority of theUnited States, i*
It lias no application to proceedings for the recovery of
debts. 1^
1 Lather v. Borden, 7 How. 66; Smith v. Maryland, 1 How. 71.
2 Green v. Blddle, 8 Wheat. 83; Lather v. Borden» 7 How. 66; Payne
r. Baldwin, 3 Smedes & M. 673.
3 £xi>arteMimgan,4WaU.120.
4 Commonwealth r. Grilfltb, 19 Mass. 11.
5 Ex parte Meador, 1 Abb. U. S. 317; Marray r. Hoboken Ac. Co. 18
How.27l
6 £z parte Meador, 1 Abb. U. S. 317; Stanwood o. Oreen. 2 Ibid. 184:
Matt. orPlatt, 7 Ben. 261; 19 Int. Rev. Rec. 132; U. 8. v. DlstlUery, 8
Chic. L. N. 47; Ex parte Strouso, 1 Sawy. C05.
7 AUen P.Colby, 45 N.H. 544.
8 Ex parte Field, 5 Dlatchf . 03.
9 Ex parte Barford, 3 Cranch, 448; Anonymous, 2 Op. Att.-Gen. 206.
10 Sanf ord v. Nichols, 13 Mass. 286.
11 Sanf ord v. Nichols, 13 Mass. 286.
12 Sanford r. Nichols, 13 Mass. 286.
13 Smith V. Maryland, 1 How. 71.
14 Ex parte Barford, 3 Cranch, 448; Murray v. Hoboken L. & L Co. 18
How. 272r£x parte MUUgan, 4 WaU. 119; Wakely v. Hart, 6 Blmi. 316;
BeU V. Clapp. 10 Johns. 2^; Sailley v Smith, 11 Johns. 500.
ARTICLE V.
PBBSONAL RIOHTS.
SSCTIOir 1.
Rights of parties accused cf crime— rights as to property.
2^0 person shall he held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
grandjurjfj except in cases arising in the land or navai forces,
or in. the militia, when in actual service in time of war or
public danger; nor shall any person he subject for the same
offense to he twice put in jeopardy of life or limb ; nor shall
oe compelled in any criminal case to he a witness against
Digitized by LaOOQ IC
▲m. V, § 1 PBBSONAL BIOHTS. 258
himself, nor he depriced of lU'e, liberty, or property y without
due process of law ; nor shcdl private property he taken for
public ^ise, without just compensation.
Amendment, proposed 25th September, 1789 : roHAetl 15th December,
1791.
Constructioii.— The prohibitions in this article are ex-
clusively restrictions upon the Federal powers to prevent
Interference with the rielits of States and their citizens. ^
The words " infamous crime " are descriptive of an offense
that subjects the person to infamous punishment, or pre-
vents his being a witness.^ Misdemeanors cannot be
brought within the term " infamous. "« As respects of-
fenses, not capital and not infamous, there is no restric-
tion upon Congress as to the mode of procedure."* An
indictment must be found by a grand jury ; an informa-
tion may be preferred by an officer of the court.* A grand
jury is a body of men varying from twelve to twenty-
three, who, in secret, hear the evidence offered by the
Government only, and find or ignore bills of indictment. «
This clause relates to time oi war as well as peace. ^
" When in actual service in time of wat or public danger "
refers to the militia ;S it cannot be extended in time of
war on a plea of public danger^ Cases arising in the
land and naval forces, etc., are excepted from present-
ment and indictment and right of trial by jury.w An
offense committed by a party while actually in the naval
service is a *'case arising in the naval forces, "ii And a
paymaster's clerk on duty in the navy is a person *'in
the naval forces."!^ The power to punish military and
naval officers is distinct from the power to define judicial
powers, 13 and the power of Congress to provide for the
Government of tlie land and naval forces is not affected
or limited by this article ;i* but a military commission for
the trial of persons not in the military service is uncon-
stitutional. ^^ A court-martial is a lawful tribunal under
the Constitution, 18 but if it had no jurisdiction, or should
inflict punishment forbidden by law, the civil courts
could inquire into the jurisdiction and give redress, i^ This
article creates no new principles, but is simply declarative
of great fundamental principles. ^^
I Barron v. Baltimore. 7 Peters, 243; Livingston v. Moore, 7 Peters,
469; Fox V. Ohio, 5 How. 410; Withers v. Buckley, 10 How. 84: Clark v.
Dick, 1 Dill. 8; Bonaparte v. Camden and A. B. B. Co. Bald. 220; Mur-
phy V. People, 2 Cow. 815; Barker v. People, 3 Cow. 686; Bering t.
Williams, 17 Ala. 616: Jackson v. Wood, 2 Cow. 819; Railroad Co. r.
Davis, 2 Dev. & B. 451: James v. Commonwealth, 12 Serg. & B. 220;
Holllster v. Union Co. 9 Conn. 496: Powers v. Dougherty, 23 Oa. 65;
Boyd V, Ellis, 11 Iowa, 97; State v. Jackson, 21 La. Am. 574; Weimer v.
Digitized by LaOOQ IC
250 PEBSONAL BIGHTS Am. V, § 1
Banbury, 30 Mich. 201; Concord R. B. v. Greely, 17 N. H. 47: Prescott
p. State, 19 Ohio St. 184; State v. Sbumpert, 1 Rich. N. S. 85; Griffliur
V. Gibb, McCall. 220; TwitcheU v. Comm. 7 Wall. 321; State ». Webb,
46 Iowa, 662.
2 U. S. V. Shepparfl, 1 Abb. U. S. 431; U. S. v. Block, 9 Cb. L. N. 234;
U. S. V. Maxwell, 3 Dill. 275; 21 Int. Rev. Rec. 148; U. S. v. Waller, 1
Sawy. 701.
3 U. 8. V. Elbert, 1 Cent. L. J. 205.
4 U. S. V. Maxwell, 3 DiU. 275; 21 Int. Rev. Rec. 148.
5 Clepper v. State, 4 Tex. 244.
6 People V. King, 2 Caines' Cas. 98; Commonwealth v. Ward, 2 Gush.
149.
. 7 In re Kemp, 16 Wis. 359.
8 In re Bogart, 2 Sawy. 406.
9 Ex parte Milligan, 4 Wall. 123.
10 Ex parte Milligan, 4 Wall. 123.
11 In re Bogart, 2 Sawy. 406.
12 In re Bogart, 2 Sawy. 406.
13 Dynes v. Hoover, 20 How. 78; In re Bogart, 2 Sawy. 401.
14 In re Bogart, 2 Savry. 406.
15 Milligan V. Hovey, 3 Biss. 18; In re Bogart, 2 Sawy. 402; Ex parte
Field, 5 Blatchf . 79. ^ . i
16 In re Bogart, 2 Sawy. 406.
17 Marshall's Case, 10 Cranch, 76; Dynes v. Hoover. 20 How. 82.
18 Yonng v. McKenzie, 3 G^. 31 ; Campbell v. State, 11 Ga. 353.
Jeopardy.— A prisoner is not once put in jeopardy
until the verdict of the jury is rendered for or against
him,i and twice in jeopardy does not relate to a mistrial, =*
nor when the jury is discharged from necessity, or the
ends of justice would be defeated,^ as where one of the
jury becomes insane,* or is attacked with a sudden ill-
ne88,fi or if a juror is so biased that he is unfit to sit on
the case,<» or where the jury fail to agree, ^ or where they
do not agree on the last day of the term.s Jeopardy
attaches where tlie verdict of guilty is rendered, and
judgment is arrested for want of arraignment and plea.^
The court may, in its discretion, discharge the jury in a
capital case as well as in a case of misdemeanor, lo Where
the jury is empanneled and sworn by inadvertence before
an argument, the proceeding may be disre£:arded, and a
jury empanneled in regular order, ii Where the jury was
discharged on account of the absence of witnesses, it does
not prevent a subsequent trial. ^^ Where the indictment
on demurrer is held oad, the prisoner may be remanded
for farther proceedings. i8 The provision is Intended to
shield the prisoner ftom a second trial, except at his
election and request, which is manifested by his applica-
Digitized by LaOOQ IC
Am. V, § 1 PERSONAL BIGHTS. 260
tion for a new trial." If the District Attorney enters a
noUe prosequi after the jur^ is empanneled and sworn, the
accused cannot be again indicted for the same offense ^^
if the court had jurisdiction. is Where either a fine or
imprisonment can be imposed, the court cannot, after
payment of the fine, render a new judgment of imprison-
ment.i7 This constitutional right may be waived. ^^
1 U. S. V. Perez, 9 Wheat. 579; U. S. v. HaskeU, 4 Wash. C. C. 402;
People r. Goodwin, 18 Johns. 187; Hoffman v. State, 20 Md. 425; State
V. Moor, Walk. 134; Commonwealth v. Merrill, Thach. C. C. 1.
2 U. S. V. Haskell, 4 Wash. C. C. 410.
8 U. S. V. Perez, 9 Wheat. 570; U. S. v. Gilbert, 2 Sum. 19: Common-
wealth V. Cook, 6 Sers. & R. 577; U. S. v. Wilson, Bald. 95; U. S. «.
Kerry, 1 McLean, 434.
4 U. S. V. Haskell, 4 Wash. C. C. 402.
5 Commonwealth v. Merrill, Thach. C. C. 1.
6 U. S. V. Norrls, 1 Curt. 23.
7 U. S. r. Perez, 9 Wheat. 579; Peoule v. Goodwin, 18 Johns. 187.
8 State 0. Moor, Walk. 134.
9 State V. Parish, 43 Wis. 395. And see State v. Norvell, 2 Yerg. 24.
10 U. S. r. Haskell, 4 Wash. C. C. 402.
11 U. S. V. Riley, 6 Blatchf . 204.
12 Hoffpian v. State, 20 Md. 425. And see U. S. v. Watson, 3 Ben. 1.
13 U. S. V. Townmaker, Hemp. 2§9.
14 U. S. V. WilUams, 1 CUff. 5; U. S. v. Keen. 1 McLean, 434; U. S. «.
Connor, 3 McLean, 573; U. S. v, Macomb, 5 McLean, 286; U. S. v. Hard-
ing. 1 WaU. Jr. 127.
15 U. S. V. Shoemaker, 2 McLean, 114.
16 Thompson v. State, 6 Neb. 107; Commonwealth v. Peters, 53 Mass.
187; State v. OdeU, 4 Blackf . 156.
17 Ex parte Lange, 18 Wall. 170. But see Brown t>. Swlneford, 44
Wis. 282.
18 Veatch ». State, 60 Ind. 291.
"Witness.— The provision as to a party not being a wit-
ness against himself applies only to criminal cases. ^
Forcing a man to be a witness against himself is con-
trary to the principles of a republican government. 2
The words '•criminal case " mean a case involving pun-
ishment for crime in an ordinary criminal proceeding,* or
on a charge of misconduct against a public ofScer.*
^ cparteMea
In re Phmlps, 10 Int. Rev. Rec. 107.
2 Wyneham v. People, 13 N. Y. 392.
3 U. S. r. Distillery, 8 Chic. L. N. 57; U. S. v. Parker, 21 Int. Rev.
Rec. 251.
4 U. S. 47. Collins, 1 Woods, 499.
Digitized by LaOOQ IC
261 PEBSONAIi RIGHTS. Am. V, § 1
Depriving of life, liberty, or property. — This
amendment simply declares the great common-law prin-
ciple as to personal rights, applicable to both State and
Federal Governments!^ The right to life includes the
right to the body in its completeness and without dismem-
berment; to liberty — the right to exercise the faculties
and follow lawful avocations; to property— the right to
acquire, possess, and enjoy it in any way consistent with
the equal rights of others and the just demands of the
State.^^ No person can be deprived of his libertjr on the
ground of neglect to assert his rights.* This section pro-
hibits an act authorizing the arrest of a citizen without
just cause ; * yet a rebel in battle may be slain or captured,
and thus deprived of his liberty ;» but a statute which
makes an order of the President a sufficient defense for
aa act personally done, is void.^ A law which authorizes
commitment, as an inebriate to a lunatic asylum, on an ex
parte affidavit, violates this provision."^ This section was
intended as a constitutional safeguard in the trial of those
cases for which it was stipulatea the courts shall remain
open, and those wherein a party shall have his remedy by
due course of law.s Legislative authority cannot reach
life, liberty, or property, except for crime, or when the sac-
rifice is demanded by a just regard for the public welfare.®
The right to acquire, hold, andenioy property is guaran-
teed by the fundamental law.i® All property is held un-
der the implied liability that its use snail not be injurious
to others. ^i A party is protected in the enjoyment of all
property, whether real or personal, ^2 including the right
to the use of a patented machine. ^^ The legislature has
no power to take property from one individual and give it
to another. 14
1 Young r. McKenzie, 3 Ga. 42; Parkbam v. Jiistice, 9 Ga. 341; Er*
vine's Appeal, 16 Pa. St. 256.
3 Bertholf v. O'BeUly, 18 Am. L. Beg. N. S. 115.
3 Allen r. Sarah, 2 Har. 434.
4 Griffin V. Wilcox, 21 Ind. 370.
6 Norris V. Doniphan, 4 Met. (Ky.) 385.
6 Johnson v. Jones, 44 111. 142.
7 In re Janes, 30 How. Pr. 446.
8 Bonaparte v. Camden &c. B. B. Co. Bald. 220; Mason v. Kemiebec
ftcB. B. Co. 31 Me. 215; Stevens v. Middlesex Canal, 12 Mass. 466;
StoweUv. Flagg, 11 Mass. 364; Aldrlch v. Cheshire &c. B. B. Co. 21 N.
H. 359; Beekman v. Saratofra Ac. B. B. Co. 3 Paige, 45; B. B. Ac. B. B.
Co. V. Ferris, 26 Tex. 588; Wheelock v. Young, 4 Wend. 647; Bloodgood
V. Mohawk &c. B. B. Co. 14 Wend. 51.
9 Atchison &c. B. B. Co. v. Baty, 6 Neb. 37: Taylor v. Porter, 4 Hill,
74»; Wikinson v. Leland, 2 Peters, 658.
Digitized by LaOOQ IC
Am. V, § 1 PE8S0KAI. BIGHTS. 262
10 Ck>mmoiiweiatli v. Bacon, 13 Bush, 214.
11 Commonwealth v. Alger, 7 Gush. 84; Bertholf p. O^BoIIly , 18 Am.
L. Beg. N. S. 120; Oomm. v. Bacon, 13 Bosh, 214.
12 Ervine'B Appeal, 16 Pa. St. 2d6.
13 Bloomer v. McQuewan, 14 How. 539.
14 Turner v. Altbaos, 6 Neb. 54.
Due process of law means such an exertion of the
powers of government as the settled maxims of the law
permit and sanction, l It simplv requires that a person
should he hrought into court ana have an opportunity to
prove any fact for his protection.^ It means law in its
regular course of administration through courts of jus-
tice 8 — a timely and regular proceeding to judgment and
execution.* It generally implies and includes parties,
judge, regular allegations, and a trial according to some
settled course of judicial proceedings ;S a legal proceed-
ing under direction of a court 'J^ intending to secure the
right of trial according to the forms of law ;7 the law of
the land ;S a present existing rule, and not an ex post facto
law ;0 a law existing at the time of the vesting of rights.!**
That it means a trial according to some settled course of
procedure is not universally true.ii It does not necessa-
rily import a jury trial,i2 hut includes summary reme-
dies.i3 Civil proceedings for contempt are not included. i*
A statute making the property-owner liahlc for damages
resulting from the illegal use of property hy a tenant is
valid. IS An assessment for grading and improving streets
is not a taking of property without compensation, or with-
out due process of law.io Private property may be taken
by a commander in war in case of exigency, but the case
must be urgent.i"' Provisions for searches and seizures
to aid in the collection of the revenue are not repugnant
to this amendment.18 So, processes for seizure and assess-
ment are within the discretion of the legislature, ^^ but
Congress has no power to provide for the absolute forfeit-
ure of land as a penalty for the non-payment of taxes,
without any process.2o A confiscation act does not author-
ize seizure and confiscation without due process of law.^i^
Congress has no power to organize a board of revision to
nullify confirmed titles.22 A trial before a board of elec-
tion officers is not duo process of law. 28 By '* without
due process of law" is meant all the guarantees set forth
in the sixth amendment.**
1 Bertholf v. O'RleUy, 18 Am. L. Beg. N. S. 119; Ex parte Ah Fook,
49 Cal. 402.
2 People V. Essex Co. 70 N. Y. 229.
Digitized by LaOOQ IC
963 hebsokal kiohts. Am. V, i X
3 Barker v, Ketty, U Minn. 480; Bowan v. State, SO Wis. 129; State
•.Beclit,23Mton.4i3. . -^
4 Dwight V. Williams, 4 McLean, 586.
.5 Murray v. Hoboken Ac. Co. 18 How. 272; Huber v. Relly, AS Pa. St.
112; Bees v. City of Watertown, 19 WaU. 122; Westervelt v. Greg, 12
N. Y. 202.
6 Newcomb v. Smith, 1 Chand. 71.
7 Parsons V. Bnssell, 11 Mich. 113.
8 Matt, of Meador, 1 Abb. U. S. 331; Murray v. Hoboken iftc. Co. 18
How. 272; Janies v. Beynolds, 2 Tex. 251. ^
9 Ho Ke V. Henderson, 4 Dev. 15; Taylor v. Porter, 4 Hill, 146;
Wynehamerv. People, 13 K. T. 393; Norman v. Heist, 5 Watts T. S. 171;
Murray v. Hoboken Ac. Co. 18 How. 272.
10 Wilkinson v. Leland, 2 Peters. 658: Osbom v. Nicholson, 13 Wall.
e62; Taylor v. Porter, 4 Hill, 146; Wynehamer v. People, 13 N. Y. 378.
11 Greene v. Briggs, 1 Curt. 311 ; Murray v. Hoboken &c. Co. 18 How.
272 ; Hoke r. Henderson, 4 Dev. 16: Taylor u. Porter^^ Hill, 146: Van
Zandt V. Waddel, 2 Yerg. 260; State Bank v. Cooper, 2 Yerg. 699; Jones
r.Perry,10Yerg.69.
12 Ex parte Meador,! Abb. U.S. 317.
13 Martin «. Mott, 12 Wheat. 19 ; U. S. «. Ferreira, 13 How. 40 ; Ex
parte Meador, 1 Abb. U. S. 317 ; Murray v. Hoboken Ac. Co. 18 How. 272.
14 State v.Becht, 23 Minn. 411.
15 Bertholf v. O'Bielly, 18 Am. Law Beg. N. S. 124; Dobbins v. U. S.
96 U. S. 396.
16 Griffin r. Mayor, 4 N. Y. 419.
17 Mitchell V. Harmony, 13 How. 115. And see Ex parte Milllgan, 4
WalL 2 ; Clark v. Mitchell, 64 Mo. 664.
18 Matt, of Piatt, 7 Ben. 261; 19 Int. Bev. Bee. 132; Murray v. Hobo-
ken Ac. Co. 18 How. 277; Ames v. Port Huron Ac. Co. 11 Mich. 139.
19 Pullan 0. Ktnsinger, 2 Abb. U. S. 94; Davidson v. New Orleans, 96
U. S. 97.
20 Martin v. Snowden, 18 Gratt. 100.
21 Hodgson V. Millward, 3 Grant, 406.
22 Beichart r. Felps, 6 WaU. 160.
23 Huber v. Bielly, 63 Pa. 3t. 112.
24 James v. Beynolds, 2 Tex. 251 ; Joues v. Montes, 15 Tex. 353.
Eminent domain. — The power of the Government
respecting public improvements is a sovereign power,
resting in tne discretion of Congress.^ Under the police
power, persons and property are subject to all kinds of
restrictions and burdens to secure general comfort, health,
and prosperity.^ This power of eminent domain is not
impaired by the Constitution. s The terms in the Consti-
tution are declaratory and not restrictive.* Where there
is an apparent public interest to be subserved, the legisla-
ture, or person or body it may designate, is the proper
judge of the necessity .5 Governments more frequently
effect these objects through the aid of corporations than
Digitized by LaOOQ IC
Am. V, § 1 PBBSOKAIi SIGHTS. 264
bv their immediate aeents.^ Private property embraces
aU private property,^ Including franchises.^ Any injury*
to tne property is a taking within the meaning of this
provision, J^ as an interruption to the use of property, i®
Where the law strips property of its attribute the owner
is within this provision, ii This provision refers only to a
direct appropriation, and not to consequential injuries
resulting from the exercise of lawful power, i* The power
to take private property is limited to purposes for public
uses. 18 It is not a limitation on the taxing power, but on
the power of eminent domain.^^ Public use means a use
concerning the whole community as distinguished from
particular individuals. ^^ The legislature cannot take pri-
vate property for purely private uses; i* so, a tax law in
aid of a private enterprise and business is void.^? A rail-
road company cannot condemn a site for the erection of
manufactories of railroad cars;^^ but a statute authoriz-
ing the taking of private property for mill sites and dams
is valid. Id Extraordinary and unforeseen occasions arise
in cases of impending danger when private property may
be appropriated to the public use, but the emergency
must be extreme and imperative.^ If movable property
is taken in good faith by a military commander, the title
vests in Government, although it was subsequently dis-
covered not to have been actually necessary ; =" the courts
cannot interfere with such acts.^a Every attempt of a
public officer to take private property for public use, un-
less justified by some pressing necessity, is a simple tres-
pass, for which the Government is not responsible.^* The
power to appropriate land or other property within the
States for its own use belongs exclusively to the Federal
Government, and can in no wise be affected by the State
legislature .2* Courts may determine a use is a public use,
but not the extent to which property may be taken.2«
1 Avery u. Fox, 1 Abb. U. S. 246; Swan v. Williams. 2 Mich. 427.
2 Thorpe v. Rutland & B. B. B. Go. 27 Vt. 140; Slaughter-House
Oases, 16 Wall. 36: Munn v. Illiuois,94 U. S. 123; BertholTv. O'Beilly,
18 Am. Law Beg. 121.
8 Dyer v. Tuscaloosa Br. Go. 2 Port. 296; West Biv. Br. Go. v. Dlx, 6
How. 539.
4 Young V. McKenzle, 3 Ga. 31.
5 Newcomb v. Smith, 1 Ghand. 71.
6 Ghes. & O. Gom. Go. v. Key, 3 Granch G. G. 599; Bait. & O. B. B. Ck>.
9. Van Ness, 4 Granch G. G. 593; Swan v. Williams, 2 Mich. 427.
7 Murray v. Hoboken Ac. Go. 18 How. 272; U. S. v. Harding, 1 WaU.
Jr. 127.
8 West Biv. Br. Go. r . Dlx, 6 How. 507 ; Wilkinson v. Leland, 2 Peters,
158: Charles Biv. Br. v. Warren Br. 11 Peters, 645; Bonaparte v. Cam-
Digitized by LaOOQ IC
265 PERSONAL BIGHTS. Am. V, § 1
den Ac. R. B. Co. Bald. 295; Enfield Br. Ck>. v. Hertford Ac. R. B. Go.
17 Conn. 40; Lexington A O. B. B. Go. v. Applegate. 8 Dana, 289: Tuck-
aboe Co. V. Bailroad Go. 11 Leigh, 42; Piscataqua &c. Br. «. N. H. Br. 7
N. H. 85; Barber 0. Anrtover.S N. H. 398; Pierce v. Somersworth, 10 N.
H. 370; Backus v. Lebanon, 11 N. H. 20; Yarlck v. Smith, 5 Paige, 146;
Dyer v. Tuskaloosa Br. Go. 2 Port. 296; Boston W. P. Go. v. Boston Ac.
R. R. Corp. 41 Mass. 360: L. Ac. B. B. Go. v. Ghappell, 1 Bice, 383;
Armington v. Bamet. 15 Vt. 749; West Biv. Br. Go. v. Dix, 16 Vt. 446;
Bloodgood V. M. &c. B. B. Go. 18 Wend. 14.
9 Pnmpelly v. Oreen Bay Go. 13 Wall. 180': Pratt v. Brown, 8 Wis. 618 ;
Walker v. Shepardson, 4 Ibid. 511; GoodaJl v. Milwaukee, 5 Wis. 39;
Weeks v. Milwaukee, 10 Wis. 242; Fisher v. Horicon Lron Go. Ibid. 853;
Newell V. Smith, 15 Wis. 104. But see Alexander v. MUwaukee, 16 Wis.
248.
10 Pnmpelly v. Oreen Bay Go. 13 Wall. 166; Munn v. Illinois, 94 U. S.
11 Wynehamer v. People, 13 N. Y. 378.
12 Legal Tender Gases. 12 WaU. 457.
13 U. S. r. Chicago, 7 How. 195; U. S. r. Ames, 1 Wood. & M. 76.
14 Gilmer v.Shellenbeiger, 2 Black, 510.
15 Gilmer v. Lime Point, 18 Gal. 229; Heyneman v. Blake, 19 CaL 579.
See People v. Kerr, 8 Barb. 357.
16 Consol. Chan. Go. r. Cent. Pac. B. B. Go. 51 Gal. 269; Newcomb v.
Smith, 1 Chand. 71. But see Ex parte Barnard, 4 Cranch G. C. 294.
17 Pnmpelly v. Green Bay Co. 13 Wall. 177; Bertholf v. O'Reilly, 18
Am. Law Beg. N. S. 116; Wynehamer v. People, 18 N. Y. 378; Weismer
V, YilL of Douglass, 64 N. Y. 92.
18 £ldridge«. Smith, 34 Vt. 484.
19 Newcomb v. Smith, 1 Chand. 71.
20 V. S. V. Bussell, 13 WaU. 623; Taylor v. Balhroad Go. 6 Gold. 646;
as in case of military necessity— Clark v. Mitchell, 64 Mo. 564; or in
case of a conflagration— Bishop v. City of Macon, 7 Oa. 200.
21 Taylor v. B. B. Go. 6 Gold. 646 ; Williams v. Wickennan, 44 Mo. 484.
22 Newcomb r. Smith, 1 Chand. 71.
28 Pitcher r. U. S. 1 Nott. & H. 7.
24 Kohl r. U. S. 91 U. S. 367: Trombley v. Humphrey, 23 Mich. 471:
Darlington v. U. S. 33 Leg. Int. 409. But see Ollmer «. Lime Point, 18
CaL 229; Burt v. Merchants' Ins. Go. 106 Mass. 356.
25 St. Louis Co. Court v. Oriswold, 68 Mo. 175.
Compensation on condemnation.— The Constitu*
tion does not recognize any necessity as authority for tak-
ing property for public use without compensation,! even
on the rightful taking of property for public use or de-
struction by a military officer ;2 but the power to confis-
cate the property of public enemies is not affected by the
restrictions of this amendment.* Private property can-
not be taken for public use without just compensation.*
Dbsty Fed. Con.— «8.
Digitized by LaOOQ IC
4Ja- V, § 1 PEBSOKAIi BIGHTS. 2R6
There must be a condemnation or an agreement consum-
mated.^ The actual occupant of vacant land is entitled
to damages, even where it is taken under an act of Con-
grdss.^ So, the rights of owners to adjacent streets is as
much propertvas the lots they own.' Congress cannot
authorize a telegraph company to construct its lines over
private property without just compensation. ^ In the ex-
ercise of its power over post-offices and post-wards, Con-
gress cannot take property without the consent of the
owner, or a iust compensation ;9 nor, in improving naviga-
tion, can it divert waters from their natural channel with-
out compensation to riparian owners.^® The making of
compensation must be as absolutely certain as that the
property is taken.n Just compensation means just in
regard to the public as well as to the individual, i'^ the
means of ascertaining which is to be in the discretion of
Congress. ^8 If the congressional act provides a special
tribunal, no other can be resorted to.^** The advantage to
land not taken cannot be set off against its intrinsic
value. 15
1 NocTis V. Doniphan, 4 Met. (Ky.) 385; Corbin v. Marsh, 2 Duvall,
2 Grant r. U. S. 1 Gt. Gl. 41; 2 Ibid. 551; Wlggtais v. U. S. 3 Gt. Gl. 412.
3 MUIerv.U. S. llWail.268.
4 Barron v. Baltimore,? Peters, 243; Bucker v. State,? Bank. Beg.
262; Gase of De Groot, 9 Op. Att.-Gen. 481; Young v. McKenzie, 3 Oa.
31; Danville &c. B. B. Go. r. Gomm. ?3 Pa. St. 29.
5 Whitman v. Boston &c. B. B. Go. 85 Mass. 138.
6 Galifomia &c. B. B. Go. v. Gould, 21 Gal. 254.
7 Lackland o. North. Mo. B.B. Go. 31 Mo. 180.
8 Atlantic & Fac. Tel. Go. v. Ghicago Ac. B. B. Go. 6 Blss. 15&
9 Dickey r. Tump. Go. 7 Dana, 119.
10 Avery v. Fox, 1 Abb. U. S. 246.
n Young V. Harrison, 6 Ga. 130; Garr v. Georgia &c. B. B. Go. 1 Kel^,
524; Miller v. Graig, 3 Stock. 106; Buffalo &c. B. B. Go. v. Ferris, 26
Tex. 588; Bloodgood v. Mohawk &c. B. B. Go. 18 Wend. 9.
12 Ghesapeake & O. Gan. Go. r. Key, 3 Granch C. G. 599.
13 Ghesapeake & O. Gan. Go. v. Key, 3 Granch G. G. 599; Swan v.
Wmiams, 2 Mich. 427; Mann v. minois, 94 U. S. 113; 69 DL 80.
14 Meadev. U. S.2Gt.G1.224.
15 People V. Mayor of Brooklyn, 6 Barb. 309; Jacob v. Louisville, 9
Dana, 114; Bogers v. Bailroad Go. 3 Me. 310; Iwale v. Baltimore, 5 Md.
314; Buffalo &c. B. B. Go. v. Ferris. 26 Tex. 588; Hatch «. Vermont
Cent. B. B. Co. 25 Yt. 49; State v. Miller, 3 Zab. 383.
Digitized by LaOOQ IC
267 CBIMlNAIi PBOCEDUBE. Am. VI, § 1
ARTICLE VI.
xodb ov tbiai. in cbiminal pfioobbding.
Section 1.
Aecuaed entitled to speedy trial ; to eof^ront toitnesses; to have counsel;
plcKe of trtal, etc.
In all criminal prosecutions, the acciised shall enjoy the
right to a speedy and public trial, by an impartial Jury of
the State and district wherein the crime shall have been
committed, which district shall have been previously ascer-
tained by law, and to be informed of the nature and cause of
the accusation ; to be confronted with the witnesses against
him ; to have compulsory process for obtaining witnesses in
his favor, and to have the assistance of counsellor his defense.
Amendmentfproposed^h September, 1789; ratified Ibth December, 1791.
These prohibitions are exclusively restrictive on the
Federal powers, to prevent interference with the rights of
States and their citizens; ^ it does not apply to acts of the
legislatures of the several States,^ though it applies to the
case of offenses committed within the limits o"f the State.*
This article does not apply to the power to confiscate the
property of public enemies,* nor to a proceeding to annul
the license of a pilot for neglect of duty.* The exception
as to trial by military and naval courts, expressed in the
Fifth Amendment, governs this amendment by implica-
tion. ^ The guaranty of the right of trial by jury is in-
tended for a state of war as well as for a state of peace,
and is equally binding on rulers and people. "^ The indict-
ment must set forth the offense with clearness and cer-
tainty.* Where the accused wrongfully kept away the
witnesses, he waives his right to be confronted by them;®
so, where he admit>i that absent witnesses will testify to
the facts set forth in the affidavit produced on behalf of
the United States.io The jurv are not constituted judges
of the law in criminal cases. ^^
1 Barron v. Baltimore, 7 Peters, 243; Fox v. Oblo, 5 How. 410.
2 Twitchell v. Commonwealth, 7 Wall. 321 ; Murphy v. People, 2 Cow.
81&: Jackson v. Wood, 2 Cowen, 819; Campbell v. State, 11 Ga. 853;
Ouillote V. New Orleans. 12 La. An. 432; £x parte Smith, 10 Wend. 449:
Walker v. Sauvlnet, 92 U. S. 90.
3 U. S. V. Dawson, 15 How. 4«7.
4 Miner V. U.S. 11 WaU. 268.
5 Low r. Commissioners, B. H. Charl. 902.
6 Ex parte MUligan, 4 Wall. 123 ; In re Bogert. 2 SaWy. 402.
Digitized by LaOOQ IC
Am. VH, § 1 TBIAL BT JUBY. 268
7 ExparteMimgaii,4WaU. 119.
8 U. S. V. Gniiksliaiik, 92 U. S. 542; 1 Woods, 308.
9 Reynolds r. U. S. 7 Am. L. B. 9.
10 XT. S. r. Sacramento, 2 Mont. 239.
11 U. S. V, Morris, 1 Curt. 23; U. S. v. Shlve. Bald. 510; U. S. v. Bat-
tiste, 2 Sum. 243: Townsend v. State, 2 Blackf.lSi; Pierce v. State, 5
How. 504; 13 N. H. 336; Commonwealth v. Porter, 51 Mass. 266; Moutee
p. Comm. 3 J. J. Marsh. 150.
ARTICLE Vn.
TRIAL BT JURY.
SBOTIOV 1.
Right oft in civil actions.
In suits at common law, where the value in controversy
shall exceed twenty dollars^ the right of trial by jury shall be
preserved, and no fact tried by a jury shall be otherwise re-
examined in any court of the United States, than according
to the rules of the common law.
Amendment, proposed 25th September, 1789; ratified 15th December, 1791.
Trial by jury.— This provision relates to trials in the
United States courts, and not to triab in State courts. ^
It does not extend to suits against the Government.^ The
restriction is general and applies to all the departments
of Government alike,^ the governor as much as any other
department,* and to the legislative and judiciary of the
Territories,^ and to tribunals established under a provis-
ional government.*^ The phrase "common law" is used
in contradistinction to equity, admiralty, and maritime
jurisdiction, and embraces all suits at common law, what-
ever may be their peculiar form, brought to settle legal
rights. 7 The *' trial by jury " means a trial by a tribunal
ot twelve men acting only upon a unanimous determina-
tion ; hence, a territorial statute allowing a verdict upon
agreenoient of three-fourths of the jury is void ;» but it
does not prevent such legislature from extending the
right to cases involving less than twenty dollars.* The
benefit of the right herein secured may be waived, but
the act of waiver should be plain and explicit, i* The in-
hibition contained in this article refers to suits at common
law alone, and not suits in admiralty, although the courts
of common law have a concurrent jurisdiction, n in which
suits in admiralty the trial is never by jury,^ nor does
the provision embrace the established exclusive jurlsdio-
Digitized by LaOOQ IC
269 TRIAL BY JTJBF. Am. VII, g X
tion of courts of equity, i' nor to a proceeding under
statutory provisions and forms specially provided ;i*
as to an examination of a claim under a fugitive slave
law,^fi or a proceeding to assess damages. ^^
1 Livingston v. Moore, 7 Peters, 469; Fox v. Ohio, 5 How. 434; Jus-
tices V. Marray, 9 Wall. 274; Edwards v. Elliott, 21 Wail. 532; Walker r.
Sauvlnet,92 U. S. 92; 27 La. An. 14: Boring v. Williams, 17 Ala. 610;
Dawson v. Shaver, 1 Blackf. 204; Colt o. Eves, 12 Coun.243; Foster v.
Jackson. 57 6a. 206; Railroad Co. v. Heath, 9 Ind. 558; State v. Keye<;, 8
Vt. 57; Huntington r. Bishop, 5 Vt. 186; Livingston v. Mayor, 8 Wend.
85; Lee r. Tlllotson, 24 Wend. 337.
2 McEIrath v. U. S. 12 Ct. CI. 312.
3 Kleinschmidt v. Dunphy, 1 Mont. 118.
4 Claim of Beside, 9 Op. Att.-Gen. 200.
5 Webster v. Beid, 11 How. 437; Morris, 487; Whallon v. Bancroft, 4
Minn. 109.
6 Scott r. Blllgerry, 40 Miss. 119.
7 Parsons v. Bedford, 3 Peters, 433; Ins. Go. v. Comstock, 16 Wall.
2S8; U. S. V. La Vengeance, 3 Dall. 297; Webster v. Beid, 11 How. 437;
Bains r. The James & Catherine, Bald. 554.
8 Kleinschmidt v. Dunphy, 1 Mont. 118.
9 Whallon v. Bancroft, 4 Minn. 109.
10 Bank V. Okely, 4 Wheat. 235; Parsons v. Armor, 8 Peters, 415; U. S.
V. Bathbone, 2 Paine, 578. -
U Waring c. Clarke, 5 How. 441; The Huntress. 2 Ware, (Dav.)8r;
U. S. V. Bright, Bright, 19; Bains v. The James & Catherine, Bald. 544.
12 IT. S. V. La Vengeance, 3 Dall. 297; The Margaret, 9 Wheat. 421:
The Betsey, 4 Cranch, 443; Whelan v. U. S. 7 Cranch, 112; U. S. v. Tho
Queen. 4 Ben. 237; Clark r. U. S. 2 Wash. C. C. 619; U. S. v. Imia, 12 Int.
Sev. Bee. 42.
13 Shields v. Thomas, 18 How. 353; Woodworth v. Bogers, 3 Wood. &
M. 135; Ely v. M. & B. Manuf. Co. 4 Fish. 64; Scott v. Billgerry,40 Miss.
119; Motts V. Bennett, 2 Fish. 642.
14 Ableman r. Booth, 21 How. 506: 3 Wis. 157; MiUer v. McQuerry, 5
McLean, 469; Ex parte Martin, 2 Paine, 346.
15 Miller v. McQuerry, 5 McLean, 469; Ex parte Martin, 2 Paine, 348.
16 Bonaparte v. Camden «&c. B. B. Co. Bald. 205.
Right, 'When not to attach.— This section does not
apply to a motion for summary relief ,i as that judgment
may be entered against the surety on an appeal bond,2
or a judgment by default for failure to produce books and
papers,* or for judgment on a forfeited recognizance;*
nor does it apply to preliminary inquiries which do not
involve a trial of the merits, 6 nor to cases where the
facts are conceded, (^ nor to a proceeding to annul the
license of a pilot,' nor to the imposition of a fine for
failure to comply with the inspection laws, 8 nor where
there is default in proceedings under confiscation laws, in
a seizure on land \^ but in an information in rem, the
claimant is entitled to a trial by jury.i<^ A trial by
d by Google
Am. VH, § 1 TRIAli BY JURY. 270
referees without the consent of the parties is not sanc-
tioned;^^ so, a nonsuit cannot be ordered in any case
without the consent of the plaintiff. ^^ A statute appoint-
ing commissioners to deteimine titles, and making their
award final, does not take away the right of trial py
jury; 18 but the State legislature cannot direct the Federal
courts, in a trial at common law, to appoint commission-
ers on questions which should be submitted to a jury.^^
1 Banning v. Taylor, 12.
2 Hiriart v. Ballou, 9 Peters, 156.
3 U. S. V. Dlstmery, 8 Ch. L. N. 57.
4 People V. Quigg, 59 N. Y. 83.
5 Ex parte Martin, 2 Paine, 348.
6 U. S. r. Anthony, 11 Blatchf. 210.
7 Low r. Commissioners, B. M. Charl. 303.
8 Green v. Savannah, B. M. Charl. 966.
9 MlUerr.U. S.llWall.268.
10 U. S. V. Barrels, 1 Bond. 687; U. S. v. DlstlUery, 8 Ch. L. N.67;
V.S.v. Packages, Gilp. 235.
11 U. S. V. Bathbone, 2 Paine, 578.
13 Elmore v. Grymes, 1 Peters, 4G9; D'Wolf v. Babaud, 1 Peters, 476-
13 Barker v. Jackson, 1 Paine, 559.
14 Green v. BldOle, 8 Wheat. 1; Bank of Hamilton v. Dudley, 2
Peters, 492.
Re-ezamination of cau8eB.-^The second clause of
this article is substantial and independent, and applies
to cases coming into Federal courts from State courts,
and protects the verdicts rendered therein.^ The only
mode of review is on motion for a new trial,^ Since this
amendment. Congress cannot confer authority to grant a
new trial by a re-examination of the facts triea by a jury,
except to redress errors of law.s An act of Congress, so
far as it authorizes the removal of causes after verdict,
and trial and determination of the facts and law, is in
violation of this amendment:^ but an act requiring the
appellant to advance the jury fee is valid. ^
1 Justices V. Murray, 9 Wall. 274.
2 Parsons v. Bedford, 3 Peters, 433; U. S. v. Wonson, 1 Gall. 20;
ratrle v. Murray, 43 Barb. 323; 29 flow. Pr. 312: Wetherbee v. Johnson,
14 Mass. 412.
^3 Parsons v. Bedford, 3 Peters, 433; Bank of Hamilton v. I>udley, 2
Peters, 492.
* Benjamin v. Murray, 28 How. Pr. 193; Patrie v. Murray, 43 Barb.
^: 14 Mass. 412. And see Spencer r. Lapsley, 20 How. 264; People v.
Murray, 5 Park. C.C. 577.
5 Venine r. Archibald, 3 Colo. 183.
Digitized by LaOOQ IC
271 BIGHTS NOT DENIED. Am. IZ, § 1
ARTICLE VIII.
BAIL— FrSfES— PUNISHMEWTS.
Section 1.
Not to be excessive.
Excessive hail shall not he required, nor excessioe fines im-
posed, iwr cruel and unusual punishments inflicted.
Amendment, proposed 25th September, 1789; ratified Ibth December, 1791.
This provision applies to National and not to State legis-
lation.! The Supreme Court cannot on haheas corpus re-
vise the sentence of an inferior court on the ground that
the fine was excessive.^ The constitutional right to bail
is not operative after trial and conviction. 3
1 Barron v. Baltimore, 7 Peters, 243; Pervear v. Commonwealth, 5
WaU. 4S0; James v. Commonwealth, 12 Serg. & B. 220; Barker v. Peo-
ple, 3 Cowen, 686.
2 Ex parte Watklns, 7 Peters, 568.
3 £x parte Schwartz, 2 Tex. Ct. App. 74.
ARTICLE IX.
CEBTAIir mOHTS MTOT DENIED TO THE PEOPLE.
Section 1.
Rights of people not disparaged by Constitution.
The enumeration in the Constitution, of certain rights^
shall not he construed to deny or disparage others retained by
the people.
Amendment, proposed 25th September, 178.9; ratified Ibth December, 1791.
This provision applies to National and not to State leg-
islation.
LiTlngston v. Moore, 7 Peters, 551.
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Am. 2, § 1 STATE ItlOHTS. 272
ARTICLE X.
STATE BIGHTS.
Section i.
Powers reserved to the States or to the people.
The powers not delegated to the United States by the Con-
stitution, nor prohibited by it to the States^ are reserved to the
States respectively i or to the people.
State rights.— The powers proceed not from the peo-
ple of America but from the people of the several States,
and remain what they were before the adoption of the
Constitution, except so far as they may be abridged by
that instrument.^ The powers not delegated to the United
States, nor prohibited to the State, are reserved to the
States respectively, or to the people. 2 " Delegated " is not
qualified by " expressly," such qualification wxts moved
and rejected.* The United States and the States exercise
jurisdiction within the same territorial limits, and are
separate and independent sovereignties, acting separately
and independently within their respective spheres, " as if
a line of division was traced by landmarks and monu-
ments visible to the eye.*' * The General Government
can claim no powers except such as are expressly
granted, or are given by necessary implication.^ Its
powers are limited in number, but not in their nature.^*
So, it has no power to impose on a State officer, as such,
any duty whatever, and compel him to perform it.7 Pro-
hibitions on the States are not to be enlarged by construc-
tion.8 That which is forbidden to the States is not neces-
sarily in the Federal Government, but if that which is
essential to government is prohibited to one, it is equiva-
lent to a grant on the other.o
1 Sturges V. Crowninshield, 4 Wheat. 123.
2 Houston V. Moore, 5 Wheat. 74; McCulloch v. Md. 4 Wheat.
316: Gibbons v. Og(len,9 Wheat. 1; 17 Johns. 488: Osbom v. Bank of
United States, 9 Wheat. 738; Brown v. Md. 12 Wheat. 419: Weston v.
Charleston, 2 Peters, 449; Dobbins v. Commissioners, 16 Peters, 435;
Collector v. Day, 1 1 Wall. 1 13 ; National Bank v. Commonwealth, 9 Wall.
353; Sweatt v. Boston &c. B. B. Co. 5 Bank. Beg. 248; U. S. v. Cruik-
shank, 92 U. S. 650; U. S. v. New Bedford Bridge, 1 Wood. & M. 426;
Inman S. S. Co. t'. Tinker, 94 U. S. 238.
3 McCulloch V. Md. 4 Wheat. 316; Martin v. Hunter, 1 Wheat. 304;
Houston V. Moore, 5 Wheat. 1; Anderson v. Dunn, 6 Wheat. 226; U. S.
V. Bailey, 1 McLean, 234.
Digitized by LaOOQ IC
273 STATE KIOBT8. Am. X, § 1
4 McCalloch r. Md. 4 Wheats 816; Glbboiis «. Offden, 9 Wheat. 1; 17
Johns. 4^ Osborn v. Bank of United States, 9 Wheat. 738: Brown v.
Md. 12 Wheat. 419: Weston v, Charleston, 2 Peters, 449; Dobbins v.
Ck>niniissloners, 16 Peters, 435: Collectors. Day, U Wall. 113; National
Bank v. Comm. 9 Wall. 353: Sweatt v. Boston &c. B. B. Co. ft Bank.
Beff. 248; Frasher v. State, 3 Tex. Ct. App. 273; Ableman v. Booth, 21
How. 506; Flfleld v. Close, 15 Mich. 60!>; State v. Garton, 32 Ind. 1 ; State
r. Gibson, 36 Ind. 38.9; People v. Brady, 40 Cal. 198; Lane Co. v. Oreflron,
7 WaU. 76: U. S. v. Cniikshank, 92 U. S. 542; 1 Woods, 308; Bradwell v.
State, 16 Wall. 130.
5 Martin v. Hunter, 1 Wheat. 304; 4 Munf. 1; Thrasher r. State, 3
Tex. Ct. App. 273.
6 Kneedler v. Lane. 45 Pa. St. 233; 3 Grant, 465.
7 Commonwealth v. Dennison, 24 How. 66.
8 Anderson v. Baker, 23 Md. 531.
9 Van Husan o. Kanouse, 13 Mich. 303.
No right of secession.— The rig^ht of secession is not
reserved, and anv statute or ordinance to that effect is a
nullity, 1 and a State continues a member of the Union,
notwithstanding the Ordinance of Secession. ^ A State
can have no political existence outside and independent
of the Constitution of the United States,^ and the attempt
to separate from the Union does not destroy its identity
nor free it from the binding force of that Constitution,*
nor release citizens from their obligation of loyalty to the
Grovernment.fi The so-called Confederate Government
and the rebel government of a State were not de facto
governments during the Rebellion.^ The confederation
of the Southern States was in direct violation of the Con-
stitution.''
See Ante, pp. 116, 193.
1 Keith V. Clark, 97 U. S. 481; U. S. v. Morrison, Chase, 521; Texas
V. White, 7 Wall. 726; White v. Cannon, 6 Wall. 443; Hall r. Hall, 43 Ala.
488. And see White r. Hart, 13 Wall. 648; Sequestration Cases, 30 Tex.
688; Chancely r. Bailey, 37 Ga. 532; Cent. B. R. Co. v. Ward, 37 Ga. 515;
Hood V. Maxwell. 1 W. Va. 219; Penny wit r. Foote, 27 Ohio St. 600; U.
8. r. Cathcart, 1 Bond, 556.
2 Texas ». White, 7 WaU. 700.
3 Fenn v. TolUson, 26 Ark. 545.
4 Keith V. Clark, 97 U. S. 451.
ft U. S. V. Cathcart. 1 Bond, 556.
9 Chisholm v. Coleman, 43 Ala. 204; Powell v. Boon, 43 Ala. 459.
Contra, Watson v. Stone, 49 Ala. 451; Michael v. State, Ibid. 361;
Scheibel v. Bachs. 41 Ala. 423. And see Shepherd v. Reese, 42 Ala.
829.
7 Florida r. Georgia, 17 How. 478.
Digitized by LaOOQ IC
Am. Z, § 1 STATE RIOHT8. SM
Reserved po'^ers of State.— The sereral States, for
all purposes y except those of a national character, are for-
eign to and independent of each other.^ The State 1^&-
latnre retains all the powers of legislation delegated to it
by the State constitution, which are not expressly takeii
away by the Constitution of the United States; ^ so, every
State has the right to determine the status or domestic and
social condition of the persons domiciled within its terri-
tory.8 The protection of citizens in their religions lib-
erty is left to the State constitution and laws5 So, the
power to regulate suffrage belongs exclusively to the
State, with which C<3ngress cannot interfere.^ The power
to direct and regulate the mode of selling goods by citi-
zens is in the State go vemment.<^ A State may bind it-
self by contract. 7 There is nothing in the Constitution
which forbids the legislature of a State to exercise judi-
cial functions. 3 The establishment of courts of justice,
appointment of judges, and the regulation of the admin-
istration of justice within each State, are witliin the pe-
culiar and exclusive province of State legislatures.^ States
have the power to regulate the tenure of real property
within their limits, the mode of acquisition, rule of descent,
and extent of testamentary disposition. w Measures cal-
culated to i)roduce public benefits through the medium
of corporations are within the reserved powers of the
States. 11 The Constitution does not furnish the correct-
ive for the abuse of power by State governments. This
is left to the interest, wisdom, and justice of the represent-
ative body, and its relations with its constituents.i^
1 Buckner v. Finley,2 Peters, 586; Bank of U. S. t>. Daatel, 12 Pe-
ters, 33; Bank of Augusta v. Earle, 13 Peters, 620; Dodge v. Woolsey,
18 How. 350.
2 Calder v. Bull, 3 Dall. 386; 2 Boot, 350; Commonwealtli r. KlmbnU,
41 Mass. 359; People v. Naglee, 1 Cal. 231.
3 Strader v. Graham, 10 How. 82.
4 Permell v. First Municipality, 3 How. 587.
6 Huber v. Reily, 53 Pa. St. 112.
6 Commonwealth v. Kimball, 41 Mass. 359.
7 Pi qua Bank v. Knoop, 16 How. 369; Ohio T. Co. v. Debolt, 16 How.
416; 1 Ohio St. 563; Boston &c. B. R. Co. v. Salem Ac. R. B. Co.68
Mass. 1.
8 Satterlee r. Mathewson, 2 Peters, 380.
9 Csader V. BuU, 3 Dall. 386; 2 Root, 350; Lapsley v. BrasheKTs, 4
Jjitt. 47.
,10 U. S. V. Fox, 94 U. S. 315; Commonwealth v. Kimball, 41 Mass. 369;
Frasher v. State, 3 Tex. Ct. App. 273.
11 Willson V. Blackbird C. M. Co. 2 Peters, 245; S. & V. R. R. Co. v.
Stockton,41Cal. 189.
12 Providence Bank p. Billings, 4 Peters. 514.
Digitized by LaOOQ IC
275 jxnnoiXL POWERS. Am. ZI, { ^
ARTICLE XL
JUDICIAL P0WBB8.
8B0TIOH 1.
Limitatum on.
The judicial power of the United StcUea shall not be conr
strued to extend to any suit in law or equity commenced or
prosecuted against one of the United States by citizens of an-
other State, or by citizens or subjects of any foreign State.
Amendment, proposed 5th March, 1794; ratified %th January, 1796.
Zbetent of restriction.— This provision was held to
extend to all pending suits, as well as to future case,d^
but applies only to original suits, and not to appeals or
writs of error ; ^ nor does it extend to suits of admiralty
or maritime jurisdiction. ^ The amendment is of neces-
sity limited to those suits in which a State is a partv to
the record,* or where the chief magistrate is sued in a
claim upon him in his ofllcial character.^ The amend-
ment provides that no suit shall be commenced or prose-
cuted against a State,<^ and for those cases only." if the
State be not necessarily a defendant, although its interest
may be affected, this amendment does not apply .^ A
State by becoming interested in a corporation lays down
its sovereignty so far as respects the transactions of the
corporation.^^ So, a suit may be maintained against a cor-
poration; although a State be a member thereof, i® or even
the feole corporator.il A mere suggestion of title in the
State to property in the possession of an individual will
not prevent a Federal court from looking into the validity
of the title; and if the court decides that the State has no
title, the State cannot resist legal process in the case.^'^
Although an independent sovereign cannot be sued,^^ yet
there is nothing in the Constitution to deprive a State
ooort of jurisdiction over suits which it possessed before
the Constitution was adopted.^*
1 HolUnffSworth v. Virginia, 3 Dall. 378; Cohens v. Virginia, 6 Wheat.
294; Georg& v. Brailsford, 2 DaU. 402; 3 Dall. 1.
2 Cohens r. Virginia, 6 Wheat. 264.
% Olmstead's Case, Bright. 9; Ex parte Madrazo, 1 Peters, 127.
4 Osbom V. Bank of United States, 9 Wheat. 738; Chisholm t. Qtecft'
gla,2 DalL 419; Cherokee Nation v. Greorgla, 5 Peters, 1 ; U. S. v. Peters.
5 Cranch, 115; Davis v. Gray, 16 Wall. 203; Olmstead's Case, Bright. 9:
n. S. V. Bright, Bright. 19; Swasey v. N. C. R. B. Co. 1 Hughes, 1 ; 71 N.
C. 571.
5 Governor of Gft. v. liadrazo, 1 Peters. 123.
Digitized by LaOOQ IC
A
Am.2Hy§ 1 PKESIDENTIAL ELECTIONS. 276
6 U. S. V. Peters, 5 Cranch, 139 ; Osbom v. Bank of TThited States, 9
Wheat. 738.
7 Cohens V. Virginia, 6 Wheat. 264.
8 Fowler v. Lindsay, 3 Dall. 411 ; New York v, Connecticut, 3 Ball.
1: U. S. V. Peters, 6 Cranch, 139 ; Osbom v. Bank of United States, 9
wheat. 738; Louisville &c. B. R Co. v. Letson, 2 How. 550.
9 Briscoe v. Bank of Kentucky. 11 Peters, 824 ; Dayton v. Bank of
Alabama, 13 How. 12; Curran v. Arkansas^ 15 How. 309.
10 Bank of United States v. Planters' Bank, 9 Wheat. 904; LouisviUe
ftc. B. B. Co. V. Letson, 2 How. 297.
11 Bank of Kentucky v. Wister, 2 Peters, 318; 3 Ibid. 431.
12 U. S. V, Peters, 5 Cranch, 115 ; Osbom r. Bank of United States, 9
Wheat. 738.
13 Osbom V. Bank of United States, 9 Wheat. 738.
14 Oarr v. Bright, 1 Barb. Ch. 157.
ARTICLE Xn.
election ot fbesideitt and vicb-president.
Section 1.
Manner cif electiont etc.
The Electors shall meet in their respective States, and vote
by ballot for President and Vice-President, one of whonij at
least, shall not be an inhabitant of the same State with themr-
selves; they shall name in their ballots the person voted for
as President, and in distinct ballots the person voted for as
Vice-President, and they shall make distinct lists of all per-
sons voted for as President, and of all persons voted for as
Vice-President, and of the number of votes for each, which
lists they shall sign and certify, and transmit sealed to the
seat of the Government of the United States, directed to the
President of the Senate ;^The President of the Senate shaU,
in the presence of the Senate and House of Representatives^
(men all the certificates, and the votes shall men be counted ; —
The person having the greatest number of votes for President
shall be the President, if such number be a miojority of the
whole number of Electors appointed; and if no person have
such majority, then from the persons having the highest
numbers, not exceeding three on the list of those voted for as
President, the House of Representatives shall choose immedi-
ately, by ballot, the President. But in choosing the Presi-
dent, the votes shall be taken by States, the representation
from, each State having one vote ; a quorum for this purpose
^laU consist of a member or members from two-thirds of the
Digitized by LaOOQ IC
277 sLAVEBY. Am. Zm, § 1
States, and a majority of all the States shall he necessary to
a choice. And if the House of Representatives shall not
choose a President whenever the right of choice shall devolve
upon them, before the fourth day of March next following,
then the Vice-President shall act as President, as in the ca,se
of the death or other constitutional disability of the President.
The person having the greatest number of votes as Vice-
President shall be the Vice-President, if such number be a
majority of the whole number of electors appointed ; and if
noperson have a majority, then from the two highest numbers
on the list, the Senate shall choose the Vice-President ; a quo-
rum/or the purpose shall consist of two-thirds of the whole
number of Senators, and a majority of the whole number
shall be necessary to a choice.
But no person constitutionally ineligible to the office of
President shall be eligible to that of Vice-President of the
United States.
Amendment, ntHfied September T&th, 1804.
ARTICLE Xm.
8LAVBBT.
SSCTIOK 1.
Slavery prohibited.
Sec. 1. Neither slavery nor involuntary servitude, except
as a punishment for crime whereof tfie party shall have been
duly convicted, shall exist within the united States, or any
place subject to their jurisdiction.
This section was not intended to afford relief to par-
ties unlawfully deprived of their libertjr, its purpose is sat-
isfied when such restraint is rendered illegal. ^ The object
of this provision was to deprive both Congress and the
respective States of the power to reduce any persons to
the condition of slavery or involuntary servitude, except
as a punishment for crime.^ Servitude has a larger mean-
ing tnan slavery .8 The utmost effect of this clause is to
declare the colored as free as the white race — it gives the
colored race nothing more than freedom.* It is a positive
declaration that slavery shall not exist. 6 That personal
servitude was meant is shown by the word "involun-
tary.*' 6 Indenture of appenticeship in violation of State
laws is an involuntary servitude within this provision."^
Contracts relating to slaves, if valid when made, are not
Dbstt Fed. Con.— S4.
Digitized by LaOOQ IC
Am. ZZn, § 2 suLVEBY. 278
impaired by this amendment ^ Emancipation made slaves
citizens of the United States.^ So, emancipation under a
State constitution makes them citizens. ^^^
1 People V. Brady, 40 CaL 198.
2 People «. Washington, 28 Gal. 658.
3 Slaughter-House Cases, 16 WalL 69; Matter of Tomer, 1 Abb. U.
S. 84.
4 Bowlln V. Commonwealth, 2 Bush, 5.
A U. S. V. Cruikshank, 92 U. 8. 543; 1 Woods, 806.
6 Slaughter-HoQse Cases, 16 Wall. 74; Matter of Tnmer, 1 Abb. U.
U.84.
7 Matter of Turner, 1 Abb. U. S. 84.
8 Osbom V. Nicholson, 13 WalL 654: 1 Dill. 219; White v. Hart, 13
Wall. 646; 39 Oa.306; Boyce v. Tabb. 18 WalL 540; McElvalno. Mudd,
44 Ala. 48; Roundtree v. Baker, 52 111. 241 ; Calhoun r. Calhoun. 2 Blch.
N. S. 283; Hall v. Keese, 31 Tex. 504. But see Oautden v. Stoddard, 41
6a. 829; Cherry v. Jones, 41 Oa. 579: Walnwright v. Bridges, 19 La. An.
234; Austin V. Sandel, Ibid. 309; Halley v. Hoeffner, Ibid. 618; LytJe v.
Whicher. 21 La. An. 182 : Rodrigues v. Bienvenu, 22 La. An. 300; Suc-
cession of Woodward, ibid. 305.
9 U. S. V. Rhodes, 1 Abb. U. S. 28.
10 Matt, of /Turner. 1 Abb. U. S. 84.
Section 2.
Sec. 2. Congress shall have power to enforce this article
by appropriate legislation.
Amendment, proposed Ut Feb., 1865 ; declared ratified, 18th Dee., 1865.
This clanse authorizes Congress to pass such laws as
are appropriate, but not to annul State laws, or control
their operation.^ Legislation which practically tends to
securing the full enjoyment of personal freedom is appro-
priate.3 A law which only permits the same class of per-
sons to testify against a black man as are allowed to tes-
tify against a white man, in a matter where personal lib-
erty IS concerned, tends to enforce this amendment.*
Power to enforce this article by appropriate legislation
imports nothing more than to uphold the emancipating
section, and prevent a violation of the contemplated lib-
erty of the enfranchised race.^ This clause does not au-
thorize Congress to pass laws for the punishment of ordi-
nary crimes and offenses against persons of the colored
race— that belongs to the State government.^
1 People «. Brady, 40 Cal. 196.
2 People V. Washington, 38 Gal. 658.
3 U. S. V. Rhodes. 1 Abb. U. S. 34: People v. Washington, 38 CaL656.
But see Bowlin v. Commonwealth, 2 Bush, 5.
4 Bowlin V. Commonwealth, 2 Bush, 5.
5 U. S. V. Cruikshank, 92 U. S. 543; 1 Woods, 308.
Digitized by LaOOQ IC
279 dvn. BIGHTS. Am. ZXV, § 1
ARTICLE XIV.
CITIZENSHIP, BEPRBSEKTATIOX, AND FTJBLIO DEBT.
SECTION 1.
Who are eiiizeni— rights of.
Sec. X All persons horn or natumlized in the United '
States, and sutject to the jurisdiction thereof, are citizens oj
the United States and of the State wherein they reside, Jyo
State 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, liberty, or property
without due process of law ; nor deny to any person within its
jurisdiction the equal protection of the laws.
Citizens. — "Citizen'* and "person" are synonymous
tenns, and this section refers to natural persons, i An in-
corporated company is not a citizen of the United States,
nor a person within the meaning of this section.^ " Citi-
zen" is entirely analogous to "subject'* at common law.*
A person may be a citizen of the United States without
being a citizen of any State.* Women may be citizens.^
This section does not confer citizenship upon persons of
foreign birth.^ The words "subject to the jurisdiction
thereof* exclude the children of foreigners transiently
within the United States, as ministers, consuls, or sub-
jects of a foreign nation.'? This amendment does not in-
clude Indians or others not born in and subject to the ju-
risiliction of the United States ;» but an Indian, if taxed,
after tribal relations have been abandoned, is a citizen.^,
Colored persons equally with whites are citizens, ^^ but an
escaped slave, resident of Canada, or his children, are not
citizens.ii This section recognizes the difference between
citizens of the United States and citizens of the State. ^^
The main purpose of this amendment was to establish the
citizenship of^the negroM This clause applies only to
citizens removing from one State to another.^*
1 People V. C. & A. R. R. Co. 6 Chic. L. N. 280.
2 Insurance Co. v. New Orleans, 1 Woods, 85.
3 U. S. V. Rhodes, LAbb. U. S. 39; North Carolina v. Manuel, 4 Dev.
& B. 20; McKay v. CampbeU, 2 Sawy. 129.
4 Slaughter-House Cases. 16 WaU. 74 ; U. S. v. Crulkshank, 92 U. S.
m; 1 Woods, 308; CuUy v. Baltimore &c, R. R. Co. 1 Hughed, 536.
5 Miner v. Happersett, 21 Wall. 162.
6 Van Valkenburg v. Brown, 43 Cal. 43.
7 Slaughter-House Cases, 1 Abb. N. C. 73.
Digitized by LaOOQ IC
Am. XIV, § 1 cnriL bights. 280
8 McKay v. Campbell, 2 Sawy. 129.
9 U. S. V. Elm, 23 Int. Bev. Bee. 419.
10 In re Turner, 1 Abb. U. S. 88.
11 Hedgman r. Board, 26 Mich. 51.
12 Frasher v. State, 3 Tex. Gt. App. 267.
13 Slaughter-House Cases, 18 Wall. 36 ; Frasher v. State, 3 Tex. Ct.
App. 267.
14 Ex parte Hobbs, 1 Woods, 542 ; Live Stock Ac. Asso. v. Crescent
City, 1 Abb. U. S. 397.
Civil rights. — The fjurpose of this amendment was to
secure to the colored race in the South the benefit of the
freedom previously accorded to them.i Privileges and
immunities of citizens include such as are derived from
or recognized by the Constitution ,2 and are not identical
with those referred to in section two of article four.s This
amendment adds nothing to the rights of one citizen as
against another,* nor does it add to the privileges and im-
munities existing at the time of its adoption; ^ it is merely
a guaranty that they shall not be Impaired by the States
or by the United States.^ It not merely requires equality
of privileges and immunities, but demands that they
shall be absolutely unabridged and unimpaired." States
may pass laws to regulate the privileges and immuniti^
of its own citizens, provided they do not abridge th^
privileges and immunities of citizens of the United
States ;° so, a State may pass laws for the protection of
the lives, health, and property of its citizens.^ Congress
cannot protect a citizen in the right to the use of a public
conveyance for local travel, i'^ Tne right of intermarriage
between the races is not a privilege or immunity pro-
tected by this amendment, the marriage laws being under
control of the State ;" so. States may provide against
miscegenation, and make it a felony. 12 Nor is the right
of trial by jury, is nor the right to practice law^* or med-
icine, ^^ nor the right to sell mtoxicating liquors, 1® nor the
right of fishery.!'' xhe possession of all political rights
is not essential to citizenship. ^^ So, a State may regulate
the conditions for the tenure of office, ^^ or determine the
class of inhabitants who may vote. 20 The elective fran-
chise is not a natural right, nor an immunity .21 By this
amendment all persons bom in the United States are cit-
izens thereof and capable of becoming voters, but the
provision is not self-executing.22 But it abrogates the
provision in a statute discriminating in votes for corpo-
ration commissioners on account of race or color.23 By
this amendment Congress had the right to pass the Civil
Bights Bill,24 which is constitutional. ''^s Congress can only
Digitized by LaOOQ IC
281 CIVIL. BIGHTS. Am. JLLv, § 1
legislate in protection of the rights of citizens of the
United States, as such.^^^ This amendment authorizes an
act providing for the equal enjoyment of accommoda-
tions, advantages, facilities, ana privileges of inns, con-
veyances, theaters, etc.^7 it was not intended to transfer
the protection of all civil rights to the Federal Govern-
ment, nor to brin^ within the power of Congress the
entire domain of civil rights heretofore belonging exclu-
sively to the several States. 28
1 Slanghter-House Gases, 16 Wall. 71.
2 State V. McCann. 21 Ohio St. 198.
3 SlauG^bter-House Gases, 16 Wall. 71. The meaning of « privileges "
hi Art. IV, Sec. 2, (1) is such as each State gave to its own citizens,
while its meaning in this section embraces much more, and applies to
all citizens of the United States. Live Stock &c. Asso. v. Grescent
S. 397. See ante. Art. IV, Sec. 2.
4 U. S. V. Gruikshank, 92 U. S. 543; 1 Woods, 308; Ward v. Flood, 48
Cat 36.
5 Miner V. Happersett, 21 Wall. 162; Ward v. Flood, 48 Gal. 36; Fra-
8her V. State, 3 Tex. Gt. App. 267.
6 U. 8. V. Gruikshank, 92 U. S. 543; 1 Woods, 308; Van Valkenburg v.
Brown, 43 Gal. 43. But see U. S. v. Hall. 13 Int. Be v. Bee. 181; 3 Ch. L.
N.260.
7 Live Stock &c. Association v. Grescent City, 1 Abb. U. 8. 398.
8 Slangbter-House Gases, 16 WaU. 36.
9 Slaughter-House Gases, 16 Wall. 36: Thorpe v Butland &c. B. B.
Co. 27 Vt. 149; New York v. Main, 11 Peters, l(fe; Prigg v. Gomm. 16 Pe-
ter8.539; Gomm. v. Kimball, 24 Pick. 359; Frasher v. State, 3 Tex. Gt.
App. 273. This amendment was not intended to interfere with State
laws for the regulation of pursuits, professions, or the use of property.
Mnnn v. People, 69 111. 80.
10 Gully V. Bait. & O, B. B. 1 Hughes, 536.
11 Ex parte Hobbs, 1 Woods, 537; Lonas v. State. 3 Heisk. 287; State
V. Gibson, 36 Ind. 389; Gommr. ». Elliott, 18 How. 591 ; Frasher v. State,
3 Tex. Gt. App. 263. But see Bums v. State, 48 Ala. 195.
12 Frasher v. State, 3 Tex. Gt. App. 262; State v. Gibson, 36 Ind. 389.
13 Walker v. Sauvlnet, 92 U. S. 90.
14 Bradwell v. State, 16 Wall. 130; U. S. v. Anthony, 11 Blatchf. 204.
15 Ex parte Spinney, 10 Nev. 323.
16 Bartemeyerr. Iowa, 18 Wall. 129.
17 McGready r. Virginia, 94 U. S. 391.
18 People 0. De La Guerra, 40 Gal. 311.
19 Kennard v. Louisiana, 92 U. S. 480; Spencer v. Board, 1 McArth.
169.
20 Van Valkenburg v. Brown, 43 Cal. 43; U. S. v. Anthony, 11 Blatchf.
200: U. S. v. Crosby, 1 Hughes, 443: Minor v. Happersett, 21 Wall. 162;
U. S. V. Gruikshank, 92 U. S. 543. But see Dillard v, Webb, 55 Ala. 468.
Digitized by C^OOQ IC
Am. XXV, § 1 CIVIIi BIGHTS. 282
21 Minor v. Happersettt 21 Wall. 162; U. S. v. Cruikshank. 92 U. S. 542 ;
1 Woods, 308: u. S. v. Anthony, U Blatchf.200: Spencer v. Board, 1
HcArth. 169; Van Valkenburg v. Brown, 43 Cal. 43.
22 Spencer v. Board, 1 McArth. 169.
23 Dlllard «. Webb, 55 Ala. 438.
24 Smith V.Moody, 26 Ind. 307.
25 In re Tomer, 1 Abb. U. S. 38; Chase, 157.
26 Gully V. Bait. &c. B. R. Go. I Hughes, 536; U. S. v. Graikshaok, 92
U. S. 660; 1 Woods, 308.
27 U. S. V. Newcomer, 22 Int. Rev. Rec. 115; 2 Am. L. T. Rep. N. S.
198.
28 Slaughter-House Cases, 16 Cal. 33 ; Frasher v. State, 3 Tex. Ct . App.
267.
Protection of citizens. — The protection of life and
personal liberty rests in the State alone. i The Federal
Government cannot punish an individual for conspiring
' to deprive a person of life or liberty without due process
of law.*^ An arrest made by an officer of the State mili-
tia, in pursuance of authority granted in time of insurrec-
tion, is not a deprival of liberty without due process of
law.8 A law allowing overseers to commit a vagrant on
an ex parte hearing deprives of liberty without due pro-
cess or law.* A State law regulating a pursuit or profes-
sion, or regulating the use oi property, does not aoridge
the liberty of the citizen. ^ A statute regulating the use
and even the price of property does not, in all cases,
deprive of property without due process of law;* nor does
a law which prohibits common carriers from discriminat-
ing against passengers on account of race and color.'''
Private property devoted to public use ceases to be pri-
vate property to the extent of that use.s Due process of
law means such an exertion of the power of government
as the settled maxims of law permit and sanction,^ in
the regular course of administration, according to pre-
scribed forms, '0 according to the law of the laud.H It
means more than a special act authorizing the depriva-
tion, i- Where the statute makes ample provision for
judicial inquiry, it is due process of law.i^ A party is
not deprived of property without due process of law,
although the case was tried without a jury.i* The require-
ment is met if the trial is had according to the settled
course of judicial proceedings. ic So, the fact that the
judgment of the conmiissioner is final does not deprive
such person of due process of law;i<* and an entry of
judgment on a forfeited recognizance does not take prop-
erty without due process of law.i" This amendment does
not apply to revenue collection. i8 Assessment of taxes
IB necessarily summary, and need not be by judicial pro-
Digitized by LaOOQ IC
283 CIVIL RIGHTS. Am. XIV, § 1
cediire;^^ so. a levy by a collector, in pnrsuance of a State
law, is due process of law.'-" A statute regulating pro-
ceedings in contestations between claimants for a judicial
office is not in violation of this section.21
1 U. S. V. Cruikshank, 92 U. S. 542; 1 Woods, 308.
2 U. S. o. Cruikshank, 92 U. S. 542; 1 Woods, 308.
3 In re Bergen, 2 Hughes, 512.
4 Portland V. Bangor, 65 Me. 120.
5 Mmin V. Illinois, 94 U. S. 113: 69 ni. 80; Ex parte Spinney, .10
Kev. 323; Bailroad Co. v. Bichmond, 96 U. S. 521.
6 Mnnn v. Illinois, 94 U. S. 113; 69 lU. 80.
7 De Cuir v. Benson, 7 La. An. 1.
8 Uunn v. lUinols, 94 U. S. 113; 69 111. 80.
9 Ex parte Ah Fook, 49 Gal. 402.
10 Bowan v. State, 30 Wis. 129.
11 Walker v. Sauvlnet, 92 U. S. 93; Kennard v. Louisiana, 92 U. S. 483.
12 Clark V. MltcheU, 64 Mo. 564.
13 Pearson v. Yewdall, 95 U. S. 296.
14 Walker t>. Sauvlnet, 92 U. S. 90.
15 Murray v. Hoboken &c. Co. 18 How. 280; Walker v. SauTinet, 92
U. S. 93.
16 Ex parte Ah Fook, 49 Cal. 402.
17 People V. Quigg, 59 N. Y. 83.
18 Davidson v. New Orleans, 6 Am. Law Beg. 1.
19 McMillan v. Anderson, 6 Am. L. J. 335.
20 McMlUanv. Anderson,6Am.L. J. 335.
21 Kennard v. Louisiana, 92 U. S. 480.
Equal protection of the la-ws.— Equal protection
implies not only equal accessibility to courts for the pre-
vention or redress of wrongs, and the enforcement of
rights, but equal exemption with others of the same class
from all charges and burdens of every kind.i This amend-
ment does not create any new rignts, but operates on
rights as it found them established.^ It applies to all
persons, whether native or foreigners, while within the
jurisdiction of the United States.^ including persons of
color,* and operates as a guaranty.^ It means that per-
sons made citizens by this amendment should be pro-
tected by law in the same manner and to the same extent
that white citizens are protected.® A statute excluding
colored children from the benefits of the school system
denies them the equal protection of the laws,"^ but a stat-
ute providing for the education of colored children in sep-
arate schools is valid.s A law imposing a tax on minors
Digitized by LaOOQ IC
Am. XIV, § 1 crvTL bights. 281
which discriminates in its operation as to race, is in con-
flict.» A State may legislate as to the rules of evidence, i*^
and may exclude Oliinese from the right to testify where
a white person is a party, i^ The Civil Bights Bill had the
effect in California of excluding the testimony of Chinese
for or against negroes equally with whites. 12 This clause
does not prevent States irom'imposing a more severe pun-
ishment lor adultery or fornication wliere the parties are
of different races, is A statute authorizing the recovery
of double the value of property destroyed by a railroad
train does not deprive of the equal protection of the
laws; 1* nor does a statute regulating slaughter-houses; ^^
nor a statute regulating the charges for storage in ware-
houses. i<* A State may legislate to prevent lewd and de-
bauched women from landing as passengers, i7 or to pro-
hibit females from being in places where liquor is 8old.i3
This provision simply prevents States from doing that
which will deprive of property, not from regulating the
use of property. 13
1 Ex parte Ah Fong, 3 Sawy. 144.
2 Ward V. Flood. 48 Gal. 36.
3 Ex parte Ah Fong, 3 Sawy. 144.
4 Slaughter-House Cases, 16 Wall. 36.
5 U. S. r. Crulkshank, 92 WaU. 543; 1 Woods, 308.
6 Slaugbter-House Cases, 16 Wall. 36.
7 Ward v. Flood, 48 Cal. 36. But see Marshall v. Donovan, 10 Bosb,
681.
8 Ward V. Flood, 48 Cal. 36; Cory v. Carter, 48 Ind. 327; State v.
McCann, 21 Ohio St. 196.
9 U. S. r. Jackson, 3 Sawy. 61.
10 People V. Brady, 40 Cal. 196; Duffy v. Hobson, 40 Cal. 240.
11 People V. Brady, 40 Cal. 198, overruling People v. Washington, 96
Cal. 658.
12 People V. Washington, 36 Cal. 658.
13 Ford «. State, 53 Ala. 150; Ellis v. State, 42 Ala. 525.
14 Tredway t . S. C. & St. P. R. Co. 43 Iowa, 627.
15 Slaughter'House Cases, 16 Wall. 36.
16 Munn v. Illinois, 94 U. S. 113; 69 HI. 80.
17 Ex parte Ah Fook, 49 Cal. 402.
18 Ex parte NeUie Smith, 38 Cal. 709.
19 Munnr.Illlnois,94U. S. 134.
Digitized by LaOOQ IC
285 BEPBESEirrATiON. Am. XrV, §3
Section 2.
Apportianment of representation.
Sec 2. Representatives shall be q^pportioned among- the
several States according to their respective numbers, count-
ing the tohole number of persons in eaxih State^ excluding In-
dians not taxed. But when the right to vote at any election
for the choice of Electors for President and Vice-President of
the United States, Representatives in Congress^ the executive
and judicial officers of a State, or the members of the legisla-
ture thereof is denied to any of the m^le inhabitants of such
State, being twenty-one years of age and citizens of the United
States, or in any way abridged, except for participation in
rebellion, or other crime, the basis of representation therein
shall be reduced in the proportion which the number of such
male citizens shall bear to the whole number of male citizens
twenty-one years of age in such State.
Disability for office.— The intent of this section was
to create a disability to be made to operate by legislation
of Congress. 1 The prohibition did not instantly on the
day of its promulgation vacate all offices and make offi-
cial acts since that day null and void. 2 A person -who
held office under the Confederate Government or aided
in the Kebellion is disqualified. So, a sheriff who took an
oath to support the Constitution is within this section.'
So as to a county attorney.* As to the effect of this
amendment as a bar to any other punishment, gwflBre?^
1 Griffin's Case, Chase, 364 ; 25 Tex. Supp. 623 ; Powell v. Boon, 43
Ala. 469.
2 Griffin's Case, Chase, 364; 25 Tex. Supp. 623.
3 Worthy v. Barrett, 63 N. C. 199.
4 In re Tate. 63 N. C. 308.
5 Ex parte Jeff. Davis, Chase, 1.
Certain persons disqiMlifled from holding office.
Sec. 3. No person shall be a Senator or Representative in
Congress, or Elector of President and Vice-President, or hold
any office, civil or military, under the United States, or under
any State, who, having previously taken an oath, as a member
of Congress, or as an officer of the United States, or as a mem-
ber of any State legislature, or as an executive or judicial offi-
cer of any State, to support the Constitution of the United
Digitized by LaOOQ IC
Am. ZXV, § 5 PUBLIC debt. 283
States J shall have engaged in insurrection or rebellion against
the same, or given aid or tomfort to the enemies thereof. But
Congress may^ by a vote of two-thirds of ea^h Tioiise, remove
sitch disability,
SBCTIOir 4.
Payment ofpublicdebt not to be questioned^Rebel debti not to be auumed.
Sec. 4. The validity of the public debt of the United
States, authorized by law, including debts incurred for pay-
m£nt of pensions and bounties for services in suppressing
insurrection or rebellion, shall not be questioned. But neither
the United States nor any State shaXl assume or pay any debt
or obligation incurred in aid of insurrection or rebellion
against the United States, or any claim for the loss oremxin-
fipation of any slave ; but all such debts, obligations, and
claims shall be held illegal and void.
Confederate notes.— No contract to pay iu Confed-
erate notes is valid, as it is a payment of debt incurred in
aid of the Rebellion.
Smith V. Nelson, 34 Tex. 516.
SBCTIOK 6.
EnforcemeM of provisions.
Sec. 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this Article.
Amendment, proposed ISth June, 1866; declared ratified 2Sth July, 1868.
ISnforcement.— The war of race, in any form, even
by private outrage or intimidation, is subject to the juris-
diction of the United States Government; and any atrocity
may be punished by the laws and in the courts of the
United States, i The Civil Rights Bill is constitutional,^
but it does not prohibit the making of race and color a
constituent of an offense if there be no discrimination in
the punishment.*
1 U. S. V. Cruiksbank, 92 U. S. 542; 1 Woods, 308.
2 In re Turner, Chase, 157.
3 Elll^v. State, 42 Ala. 525.
Digitized by LaOOQ IC
BiOHT TO VOTE. Am. XV, g 2
ARTICLE XV.
BLXOTIYIB TRAHOEQSS.
SSOTIOir 1.
4
Right (if all eittzen* to vote.
Beo. 1. The right of citizens of the United States to vote
shaU not be denied or <wridged by the United States or by any
State on account of race^ color, or previous condition of serv-
itude.
This amendment invests the citizens of the United
States with a new right within the protecting power of
Ooneress.^ It does not confer the right of suffrage on any
one.* It takes away the authority of the State to discrim-
inate against citizens of the United States on account of
either race, coloi, or previous condition of servitnde,^ and
colored persons equally with whites are citizens of the
United States; * but the power of the States upon all other
grounds, including that of sex, remains intact.^ It does
not include persons who have merely declared their inten-
tions to become citizens.*
1 U. S. V. Beese, 92 U. S. 218; U. S. v. Cruiksbank, 92 U. S. 543; 92 U.
8.542; 1 Woods, 306.
2 Minor v. Happersett, 21 Wall. 178: IT. S. v. Cruikshank, 92 U. S. 555;
1 Woods, 306; U. 8. v. Reese, 92 U. S.214; Anthony v. Haldeman,? Kan.
50; Hedgman p. State, 26 Mich. 51 ; U. S. v. Petersburg Judges. 14 Am.
Law Beg. 105. '^
3 U. 8. V. Reese, 92 U. 8. 214; U. 8. v. Crulkshank, 92 U. 8. 543: 1
Woods, 308 :U. 8. v. Petersburg Judges, 14 Am. Law Reg. 105; Van val-
kenburg v. Brown, 43 Gal. 43 ; Wood v. Fitzgerald, 3 Or. 568.
4 In re Turner, 1 Abb. U. 8. 88.
5 Van Yalkenburg v. Brown, 43 Gal. 43.
6 McKay v. Gampbell, 2 8awy. 129; Hedgman v. 8tate, 26 Mich. 51.
Sectiow 2.
Power to enforce provinon*.
Sec. 2. The Congress shall have power to enforce this
Article by appropriate legislation,
, Amendment, proposed 21th February, 186.7; declared ratified 30th
March, im.
Digitized by LaOOQ IC
Am. XV, § 2 BIGHT TO TOTE. 288
The rights of citizens created by or dependent on
the Constltntion of the United States may be protected by
Congress. 1 Congress may make the non-performance of
duties of persons imposed by State laws, which affect the
rights of persons, an offense against the United States,
and may punish accordingly.^
1 U. S. V. Reese, 92 U. S. 214.
2 U. S. V. Given, 17 Int. Rev. Rec. 289.
Digitized by LaOOQ IC
INDEX.
A1)oUalimont— of slaTery, Amdt. art IS, see. 1, p. t77.
A]M«ntM--£rom hoiue, pkoyIbIoos concerning, art. 1» see. 6, par. I,
p. 00.
▲ooeptance— of office or gifts from foreign potentate, art. 1* tec. 9.
par. 8, p. lift.
Aot of Oongreas— passage of, p. fiS.
when to take effect, p. S5. .
power of Congress to enact, p. 84.
proYlBlons, when constitutional, p. IM.
Acoonnta of pnUio money— to be published, art 1, sec. 9, par. 7, p^
119.
Actiona— re-examlnation of canses of, Amdt. art 7, sec. 1, p. SOS.
to what section applies, p. 270.
Adjournment— of House, for want of a quorum, art. 1, sec. 5, par. 1. p.
restriction on power of, art. 1, see. 5, par. 4, p. 02.
when President may adjourn Congress, art. 2, sec. 3, par. 1, p. 20ft.
Alteration>-of charter of corporation, State authority, p. 174.
power may be reserved in charter, p. 175.
exercise of reserved power, p. 177.
Admiralty and maritime jnriadiotion— where lodged, art. 8, sec. 2,
par. 1, p. 215.
interpretation and construction, p. 221.
Admiasion— of new States, power of Congress, art 4, sec. 8, par. 1, p.
242.
clause construed, p. 242.
Adoption— of anterior confederation debts and obligations, art 6, sec.
1, par. 1, p. 248.
Advice and consent— of Senate, when required, art 2, see. 2, par. 2,
p. 203.
Affirmation— see Oath.
Agreements— or compacts, not to be entered into by States, art 1, sec.
10, par. 3, p. 190.
right and duty of protection, where lodged, p. 198.
Alliance— no State shall enter into treaty of. art 1, sec. 10, par. 1, p.
secession and confederation inhibited, p. 116.
no right of secession, p. 273.
Ambassadora— President may appoint, art. 2, sec. 2, par. 2, p. 208.
ludicial power extends to, art. 3, sec. 2, par. 2, p. 223.
original Jurisdiction over, p. 228.
I>i8TY Fed. Coir.— •s. C289]
Digitized by LaOOQ IC
290 niDBX.
Amendments— to Ckmstitutlon, proiKMal does not require President's
approTal, p. 56.
when Congress shall propose, art. 5, sec. 1, p. 247.
convention for, art. o, sec. 1, par. 1, p. 247.
to be ratified bv three-fourths of the States, art. 5, sec. I, p. 247.
power of people, without limit^. 247.
what ones apply exclusively to united States Goyemment, p. 247.
of corporate charter, authority of legislature, p. 174.
power mav be resenred in charter, p. 175.
exercise of reserved power, p. 177.
Appeal— right of, may be regulated by statute, p. 158.
Appellate jurisdiction— of Supreme Court, art. 3, sec. 2, par. 2, p. 223.
clause construed, p. 225.
Appointment— and removal from ofllce, p. 204.
power of executive, art. 2, sec. 2. par. 2, p. 203.
to ofllce, when void, p. 53.
senators and representatives cannot be appointed to civil office,
art. 1, sec. 6, par. 2, p. 53.
Apportionment— of representation and direct taxation, art. 1, sec. 2,
par. 8. p. 46. Repealed, Amdt. art. 14, sec. 2, p. 285.
of Representatives among the several States, Amdt. art 14, sec.
2. p. 285.
construction of ori(dnal clause, p. 46.
intent of Fourteenth Amendment, p. 285.
Appropriate legislation— power of Congress, art. 1, sec. 8, par. 18, p.
enforcement of Thirteenth Amendment, art. 13, sec. 2, p. 278.
enforcement of Fourteenth Amendment, art. 14, sec. 2, p. 286.
enforcement of Fifteenth Amendment, art. 15, sec. 2, p. 287.
Appropriate means— Congress may adopt, p. 58.
Appropriation— for army, limited to two years, art. 1, sec. 8, par. 12,
p. 99.
money not to be drawn but in consequence of, art 1, sec. 9, par.
7 pp. 1,5.
disbursements of public money to be published, art 1, sec. 9, par.
7, pp. 1,5.
ApproTal- bills to be presented to President for, art. 1, sec. 7, par. 2,
p. 54.
orders, resolutions, etc., to be approved, art. 1, sec. 7, par. 3, p. 65.
proposed amendments to Constitution need not be presented,
p. 56.
Armies— appropriations limited to two years, art. I , sec. 8, par. 12, p. 99.
Congress to make rules for government of, art. 1, sec. 8, par. 4, p.
power to raise and support, construed, p. 99.
Congress may provide for trials by courts-martial, p. 100.
may provide for common defense, art. 1, sec. 8, par. 1, p. 58.
Arms— right of people to bear, Amdt art. 2, sec. 1, p. 255.
right construed, p. 255.
Arrest— defined, p. 52.
privilege of- members of Congress from, art. 1, sec. 6, par. 1, p. 82.
clause construed, p. 52.
extent of privilege, p. 53*
Arsenals— exclusive authority of Congress, art. 1, sec. 8, par. 17, p. 102.
Arts— Congress to promote, art 1, sec. 8, par. 8, p. 94.
power defined, p. 94.
Attachment law— when superseded by bankrupt law, p. 86.
Digitized by LaOOQ IC
IKPKX. 291
Attainder— Congress caonot pass bill of, art. 1, sec. 9, par. 9, p. 111.
State sbaU uot pass bill of, art. 1, sec. 10, par. 1, p. 116.
of treason not to work ooiruption of blood, art.lt, sec. 8, par. 2, p.
229. *— »ir
construction of claoses, pp. Ill, 120.
Attendance— of members of Congress may be compelled, art. 1, sec. 5,
par. 1, p. 60.
Authentication— of State record. Congress to prescribe maimer of,
art. 4, sec. 1, par. 1, p. 230.
Authority— of State over Judicial proceedings, p. 145.
of executive over conquered territory, p. 199.
Authors and inTentors— Congress to secure rights of, art. 1, sec. 8.
par. 8, p. 94.
power demied, p. 94.
Bail— excessive, not to be required, Amdt. art. 8, sec 1, p. 271.
section construed, p. 271.
Ballot— electors of President to vote by, Amdt. art. 12, sec. 1, p. 276.
when House to choose President by, Amdt. art. 12, sec. i, p. 276.
Bank— State may establish, p. 120.
may regulate issuance of notes, p. 167.
may exempt from taxation, p. I(i5.
Banking corporattons— cbarter a contract binding on State, p. 167.
State may incorporate, p. 118.
notes of, not bills of credit, p. 118.
Bankrupt act— effect of, on State insolvent laws, p. 86.
when superseded insolvent laws, p. 87.
what laws superseded by, p. 87. *
Bankruptcies— Congress to pass uniform laws on, art. 1, sec. 8, par. 4
p. 81. ^
bankruptcy defined, p. 83.
laws to be nnlfohn, p. 84.
power of Congress unlimited, p. 84.
Basis of representation— what is, Amdt. art. 14, sec. 2, p. 185.
when to be reduced, Amdt. art. 14, sec. 2, p. 285.
intent of amendment construed, p. 285.
Belligerent— may by capture enforce authority, p. 98.
Bill of attainder— Congress cannot pass, art. 1, sec. 9, par. 3, p. 111.
clause construed, p. 111.
, States shall not pass, art. 1, sec. 10, par. 1, p. 120.
bill of attainder, what is, p. 120.
Bills of credit— Congress may issue, p. 61.
may make them legal tenders, p. 62.
Confederate notes are not, p. 119.
States shall not emit, art. 1, sec. 10, par. 1, p. 116.
clause construed, p. 118.
bank bills are not, p. 118.
BUls— for raising revenue, to originate in House, art. 1, sec. 7, par. 1, p.
on passage of both Houses to be presented to President, art. 1,
sec. T, par. 2, p. 64.
power of President to sign or disapprove them, art. 1, sec. 7, par.
2, p. 64.
two-thirds of each House may pass over his veto, art. 1. sec. 7,
par. 2, p. 64.
not returned by President within ten days, become law, unless,
etc., art. 1, sec. 7, par. 2, p. 54.
Digitized by LaOOQ IC
BoiTow money— power of Ooyemment, what Includes, p. 61.
State and municipal corporations may, p. 118.
Bomities—debt for, not to be questioned, Amdt. art. 14, sec. 4. p. 286.
to volunteers, State may give, p. 99.
statutes granting, construed, p. 128.
Branches of Grovemment— separate and Independent, p. 44.
Breach of peace— no privilege from arrest for, art. 1, sec. 6, par. 1,
p. 52.
Bribery— all officers liable to impeachment, art. 2, sec. 4, par. 1, p. 207.
Bridges— authority to build, power conferred on Congress, p. 67.
"* power of Congress, when paramount, p. 74.
grant of franchise a contract, p. 168.
when State may charter, p. 74.
Oanal companies— ^tate may charter, p. 74.
Oandidates— who deemed elected, p. 45.
Capitation tax— laid in proportion to the census, art. 1, sec. 9, par..4,
p. 113.
construction of clause, p. 113.
Oaptnrea— Congress to make rules for, art. 1, sec. 8, par. 11, p. 97.
extent of power, p. 98.
Causes— of aetion at common law, trial by jury, Amdt. art. 7, sec. 1, p.
re-ezainination of, Amdt. art. 7, sec. 1, p. 268.
to what section applies, p. 270.
trial by jury, p. 268.
right, when ctoes not attach, p. 269.
Ceded property— authority of Congress over, art. 1, sec. 8, par. 17, p. 162.
over District of Columbia, p. 103.
over other places, p. 104.
over sites for forts, arsenals, etc., p. 104.
extent of State jurisdiction over crimes, p. 105.
Census— of people, when to be taken, art 1, sec. 2, par. 3, p. 45.
eighth, when took effect, p. 46.
capitation tax iu proportion to, art. 1, sec. 9, par. 4, p. US.
Certificates— to foreign corporations not a contract, p. 151.
of election of members to Congress, p. 60.
Charter— tonrivate corporations, a contract with State, pp. 162, 172.
franchise, how construed, p. 16^.
Legislature cannot contravene provisions of, p. 162.
right to amend , alter, or repeal, p .* 162.
includes laws defining its stipulations, p. 168.
to what laws subject In case of consolidation, p. 170.
effect of immunity from taxation, p. 172.
right of emhient domain, p. 172.
Implied reservations in, 173.
may be altered or amended by assent of corporations, p. 174.
power to alter, amend, or repeal may be reserved in, p. 175.
exercise of reserved power, p. 177.
of power to repeal, p. 178.
granted by Confederate States, void, p. 116.
Cherokee Territory— laws of, construed, p. 81.
Chief Justice- to preside on impeachment of President, art If mo. 9.
par. 6. p. 48.
Chinese— State cannot discourage immigration of, p. 71.
Choses in action— transfer of, cannot be prohibited, p. 156.
Digitized by LaOOQ IC
INDEX. 293
Oitis02u— no other than, sball be BepieBeiitativeB in Congroas, art 1,
sec. 2, par. 1, p. 45.
qnaliflcatlons necessary for Senator, art. 1, sec. 8, par. 8, p. 47.
Inhabitants of the District of Columbia are, p. 108.
no person but natural bom shall be President, art. 2, sec 1« par.
6, p. 196.
nor Yice-President, Amdt. art. 12, sec. 1, p. 277.
privileges and immunities preserved to, art. 4, sec. 2, par. 1, p. 283.
citizens , who are, p. 233.
privileges and immunities construed, p. 234.
of other States, when bound by Stato insolvent laws, pp. 80, 90.
Stato rights as to citizens, p. 236.
all persons bom or naturalized are citizeos of United States, and
of the State, Amdt. art. 14, sec. 1, p. 279.
citizens under this amendment who are, p. 297. *
not to be deprived of privileges or immunities, Amdt. art 14,
seel, p. 279.
civil rights, purpose of amendment, p. 280.
not to be deprived of life, liberty, or property, without due proof
ess of law, Amdt art. 14, sec. 1, p. 279.
protection to. guaranteed, p. 282.
equal protection of the laws, amendment constraed, p. 283.
right to vote shall not be denied or abridged, Amdt art 15, sec.
l,p.287,
lendmei
amendment construed, p. 287.
rights of, may be protected by Congress, Amdt art 15, sec. 1, pd.
287,288.
Oitizenahip— does not of itself give right to vote, p. 45.
rUht of suiErage not conferred by Fifteenth Amendment* p. 287.
effect of naturalization, p. 82.
what constitutes, p. 82.
OiTil actions— trial by jury in, Amdt. art. 7, sec. 1, p. 268.
light, when not to attach, p. 269.
re-ezaminatlon of causes, p. 270.
OiTil officers— of United States, removal by Impeachment, art 2, sec.
4, par. 1, p. 207.
OiTil righta-f^uaranteed to citizens of United States, Amdt art. 14,
^secri;p.279.
citizens of United States, who are, p. 279.
purposes of amendment, p. 280.
protection of citizens, p. 282.
equal protection of the laws not to be denied, p. 28S.
Act or Congress, " GivU Rights BiU" consUtutlonal, p. 286.
OiTil war— when exists, p. 97.
Olasaifloation of Senators— into three classes, art 1, sec. 8, par. 2, p.
Olearance— of vessels not required in interstate commeree, art. 1, sec
9, par. 6, p. 114.
Ooin— States not to coin gold and silver, art 1, see. 10, par. 1, p. 116.
not to make anything but a legal tender, art 1, sec. 10. par. 1, p.
OommaBder-in-chlef— of am^ and navy, art 2* sec. 2, par. 1, p. 197.
power as, construed, p. 198.
anthorlty over conquered territory, p. 199.
power to proclaim martial law, p. 200.
Oommerce— defined, p. 65.
what it includes, p. 65. . ^ . *
Congress shall have power to regulate, art 1, sec 8, par. Jt !>• <B-
Digitized by LaOOQ IC
291 iin>EX.
Oommeroe^C(mtinued.
Jnclades transportation and navigation, p. 65.
construction of clause, p. 65.
power of Congress construed, p. 66.
embraces all Instruments by wmch carried on, p. 68.
power, what it embraces, p. 68.
excluslYeness of power of Congress, p. 70.
power as to passengers, p. 71.
police power of States, when may be exercised, p. 72.
power of State over Internal commerce, p. 78.
State authority over fisheries, p. 75.
State license taxes valid, p. 76.
licenses for sale of goods, p. 77.
with Indians, power of Congress, p. 78.
Intercourse with Indian tribes, p. 79.
Indian laws and customs, p. 81.
no preference to be given between ports of States, art. 1, sec. 9,
par. 6, p. 114.
construction of clause, p. 114.
vessels In Interstate conmierce, not to be obliged to enter, dear,
etc., art. 1, sec. 9, par. 6, p. 114.
State without consent of Congress not to lay Imposts or duties,
art. 1, sec. 10. par. 2, p. 187.
clause construed, p. 187.
State Inspection laws maybe passed, p. 189.
State taxation, when valid, p. 189.
State without consent of Congress not to lay any duty on ton-
nage, art. 1, sec. 9, par. 3, p. 190.
tonnage duties construed, p. 190.
duties on Instruments of commerce, when invalid, p. 192.
Oosnmercial agent— of foreign nation. United States Marshal cannot
be, p. n5.
Commissions— to fill vacancies, to be granted by President, art. 2,
sec. 3, p. 206.
Common defense— Government to provide for. Preamble, p. 41.
construction of term, p. 43.
Common law— trial by jury, Amdt. art. 7. sec. 1, p. 268.
right, when not to attach, p. 269.
re-examination of causes, p. 270.
Oompact— States not to enter into, art. I, sec. 10, par. 3, p. 190.
construction of clause, p. 193.
Compensation— of President, art. 2, sec. 1, par. 7, p. IS7
of Senators and Representatives, art. I, sec. 6, par. 1 , p. 62.
persons holding two ofiices entitled to, for both, p. 54.
of Judges of Supreme Courts, art. 3, sec. 1, par. 1, p. 208.
private property not to be taken without making, Amdt. art. 5,
sec. 1, p. 257.
» construction of clause, p. 265.
Compulsory process— accused to have, Amdt. art. 6, sec. 1, p. 267.
Condemnation— right of, construed, p. 263.
compensation on, p. 265.
Confederation— State not to enter into, art. 1, sec. 10, par. 1, p. 116.
debts of original, assumed, art. 6, sec. 1, par. 1, p. 248.
confederate notes in aid of rebellion, void, pp. 116, 286.
charter granted by, void, p. 116.
was but organized treason, p. 116.
not a de/octo government, p. 116.
all its acts nun and void, p. 116.
bonds and notes of, void, p. 116.
charter granted by, void, p. 116.
Digitized by LaOOQ IC
INDEX. 295
Ooafedera.Mon-'Continued.
treasury notes issued by, void, p. 116.
notes of, were not bills of credit, p. 119.
could not emit bills of creditp. 219.
validity of securities of, p. 126.
contracts made in Confederate States, not In aid of rebellion^
valid, p. 131.
Oonfiacation— Congress bas exclusive power of, p. 97.
Congress— legislative powers vested In, art. 1, sec. 1, p. 44.
of what to consist;, art. 1, sec. 1, p. 44.
election for Senators and Representatives, art. 1, sec. 4, par. 1, p.
48.
construction of clause as to elections, p. 48.
Conpess to assemble at least once a year, art. 1, sec. 4, par. 2, p.
Jlflcations of members, art. 1,
i:s, art. 1, sec. 5, par. 2, p. 51.
1, sec. A, par. ft. p. 52.
\T Of, art. 1, sec. 5, par. 4, p. 52.
ec. 6, par. 1, p. 52.
,sec. 6,par. i,p. 52.
aces, art. 1, sec. 6, par. 2, p. 53.
•t. 1, sec. 7, par. 1, p. 54.
c. 7, par. 2, p. 54.
pproval, art. 1, sec. 7, par. 2,
p."54.
course of proceedings, p. 55.
orders.resolutions, and votes, approval of President, art. 1, sec.
7.par. 3, p. 55.
proposal for amendment to Constitution, p. 56.
Powers of Congress.
in general, p. 56.
exclusive when exercised, or when States expressly prohibited,
p. 85.
to lay and collect taxes, duties, imposts, and excises, art. 1, sec.
8, par. 1, p. 56.
of taxation, extent of, p. 58.
to borrow money on credit of United States, art. 1, sec. 8. par. 2,
p. 61.
Implied power to create a legal tender, p. 62.
power to exempt national securities from taxation, p. 63.
to regulate commerce, art. 1, sec. 8, par. 3, p. 65.
commerce defined, p. G5.
extent of power to regulate commerce, p. 66.
what embraced in scope of power, p. 68.
when power to regulate is exclusive, p. 70.
power to tax passengers, p. 7 1. a
police powers of State, not in conflict with, p. 72. •
powers of State, when concurrent, p. 70.
Sowers of State over internal commerce, p. 73.
tate authority over fisheries, p. 75.
State power of taxation, when constitutional, p. 76.
State licenses for sale of commercial products, p. 77.
power over commerce with Indians, p. 78.
with Indian tribes, p. 79.
effect of Indian laws and customs, p. 81.
Congress to establish uniform rule of naturalization, art l,8ec.
T, par. 4, p. 81.
power exclusive, how exerted, p. 82.
Congress may make laws on subject of bankraptcles, art. 1, sec.
C par. 4, p. 81.
Digitized by LaOOQ IC
296 ENDBX.
Oongress— PouMTj cif— Continued.
Dankruptcy and "subjects of," constraed, p. 83.
uniformity construecl, p. 84.
.extent of power over subject of bankrut>tcies» p. 84.
over bankruptcies, exclusive only when exercised, p. 85.
State insolvent laws, wnen operative, p. 86.
when superseded, p. 87.
validity of State Insolvent laws, p. 88.
validity of discharge under State laws. p. 90.
Congress to coin money and regulate its value, art. 1, sec 8, par.
5, p. 91.
to fix standard of weights and measures, art. l,8ec. 8, par. 6, p. 91.
money construed, p. Jil.
Congress to provide for punishment of counterfeiting, art. 1, sec
8, par. 6, p. 92. ,
extent of power, p. 92.
to establish post-offtces and post-roads, art. 1, sec. 8, par. 7, p. 93.
" to establish," what includes, p. 93.
4. 4. -„ ^* «>• ^ useful arts, art. 1, sec 8, par.
.],sec. 8, par. 9,p. 96.
ilonies on nigh seas, art. I, sec
nst law of nations, art. 1, sec
>f marque and reprisal, art. 1,
Congress, p. 97.
art. 1, sec 8, par. 11, p. 97.
Action as to, art. 1, sec. 8» par.
1. 1, sec, 8, par. 13, p. 100.
ices, p. 100.
forces, art. 1, sec. 8. par. 14, p.
may l^rovide for trials by courts-martial, p. 100.
to provide for calling out militia, to execute laws, etc»art. 1,
sec. 8, par. 15, p. 100.
power construed, p. 100.
to provide for organizing, arming, etc., the militia, art 1, sec 8,
par. 16, p. 102.
reserved power of States as to militia, art. 1, sec. 8, par. 16, p. 102.
power, when and how exercised, p. 102.
to exercise exclusive Jurisdiction over ceded districts, art 1, sec.
8, par. 17, p. 102.
and over tenitory purchased from States for forts, etc, art 1,
secS.par. 17,p.l02.
JnrLsdiction over District of Columbia, p. 103.
exercise of power of legislation for the union, p. 103.
extent of power over property ceded, p. 104.
what power retained by States, p. 105.
tomskke laws necessary to carry its powers into ezecntlOQ, art
l.sec.S, par. 18, p. 106.
extent of incidental powers of Oovemment, p. 106.
discretion as to use of means to carry out powers, p. 106.
Digitized by LaOOQ IC
iMDSz. 297
Oongna9—Power» qf—CfonHmMed.
may make contracts, p. 107.
enumeration of means, pp. 107, 106.
to revise and control State Imposts and duties, art 1, sec 10,
par. 2, p. 187.
so as to State inspection laws, art. 1, sec. 10, par. 2, p. 187.
construction of clause, p. 189.
may determine time of choosing presidential electors, art. 2, sec.
1, par. 4, p. 19*. — 1» *-
to legislate for government of conqaered province, p. 199.
to establish courts Inferior to Supreme Court, art. S, sec. 1, par.
l.p.206.
provision construed, p. 206.
extent of power, p. 209.
may define Jurisdiction of territorial courts, p. 212.
may provide for removal of causes, p. 214.
cannot-Umlt compensation or term of judicial officers, p. 215.
may declare punishment for treason, art. 3, sec. 3, par. z, p. 229.
power exclusive in Congress, p. 229.
may prescribe manner of authentication of acts, records, and
proceedings, Amdt. art. 4, sec. 1, par. 1, p. 230.
power defined,!). 232.
power to provide for surrender of fugitives, p. 239.
exclusive power as to surrender of fugitives from labor, p. 241.
may admit new States into the Union, art. 4, sec. S, par. I, p. 242.
restriction on power construed, art. 4, sec. 8, par. l/p. 242.
to dispose of property and make rules to govern Territory, art.
4,sec. 3,par. l,p. 243.
to guarantee republican government to State, art 4, sec. S, par.
to govern the Territories, p. 245.
to propose amendment to Constitution, when and how, art. 5,
sec. 1. par. 1, p. 247.
laws of, are supreme, art. 6, see. 1, par. 2, p. 248.
may remove disability for office, Amdt. art 14, sec. 3, par. 1, p.
285.
to protect and enforce the rights of citizens, Amdt. art. 15, sec. 2,
par. 1, p. 287.
to enforce amendments, pp. 286, 287.
may make infringement of personal rights an offense, p. 288.
Bestriction on poteen of Congresi.
as to migration or importation of persons, art. 1, sec. 9, par. 1,
p. 109.
clause restrictive of powers of General Government, p. 109.
as to susoension of the writ of habeoM corpus, art. 1, sec. 9, par. 2,
clause constraed, p. 110.
to pass no bill of attainder or ex pottfaeto laws, art 1, sec. 9, par.
3, p. 111.
bill of attainder construed, p. 111.
er post facto laws construed, p. 112.
to uur no capitation or other direct tax, unless, etc., art. 1, sec. 9,
par. 4, p. 113.
to lay no tax or duty on exports from a State, art. 1, sec. 9, par.
5, p. 114.
to give no preference to ports or vessels of one State over anoth-
er, art 1, sec. 9. par. 6, p. 114.
clause construed, p. 114.
to draw no money from treasury but on appropriation, art 1,
sec. 9, par. 7, p. 115.
to grant no title of nobility, art. 1, sec. 9. par. 8, p. 115.
cannot limit compensation or term of office of United States
Judges, art 9, sec. 1, par. 1, p. 206.
Digitized by LaOOQ IC
298 INDEX.
Oongnmt— RettrieHon on pawen of— Continued.
power of Ck>iigre8s construed, p. 206.
restriction on power to limit, p. 216.
not to abridge the privileges and immunities of dtiaens, art. 4»
sec. 2, par. 1, p. 233.
to make no laws respecting the establishment of religion. Amdt.
art. 1, sec. 1, p. 254.
religion, right of people secured, p. 254.
to make no laws abridging the freedom of speech or press, art. 1,
sec. 1, p. 254.
to make no laws abridging the right of assembly and petition*
art. 1, sec. 1, p. 254.
not to infringe the right of people to bear arms, Amdt. art. 2, sec
1, p. 255.
right construed, p. 255.
not to quarter soldiers, except, etc., art 8, sec. I, par. 1. p. 256.
not to infringe the right of the people as to security of persons,
papers, and effects, Amdt. art. 4, sec. 1, p. 256.
construction of clause, p. 256.
not to infringe personal rights of the people, Amdt. art. 6, sec. 1,
Amdt. art. 5, sec. I, p. 267.
tardy, Amdt. art. 6, sec 1, p.
Bt himself, Amdt. art 6, sec
, without due proc*
J57.
Ithout compensation, Amdt.
SB of law, construed, p. 26L
66.
>ased of crime, Amdt art 6,
id, Amdt art 7, sec. 1, i». 263.
fines, Amdt art 8, sec 1, p.
iparaged by grant to Federal
to States are reserved to the
sec. 1, p. 272.
lude, p. 274.
Qpalred, Amdt art 16, sec. 1,
Oonqnest— authority of Executive over conquered territory, p. 199.
authority of Congress over United States Territory, art 4, sec. 3,
par. 2. p. 243.
Oonscription— Congress may authorize, p. 99.
Consent— of Congress, required for official to receive present, etc.
art. 1, sec. 9, par. 8, p. 115.
required for State to lay imposts, etc., art. 1, sec. 10, par. 2, p. 187.
Digitized by LaOOQ IC
INDEX. 299
Oonaeat—ConHnued.
or to lay duty on tonnage, art. 1. sec. 10, par. 3, p. 190.
or to enter Into agreement or compact with other State, art. 1,
sec. 10, par. 3, p. 190.
or to engage in war, art. 1, sec. 10, par. 3, p. 190.
or to form new State within another State, art. 4, sec. 3, par. 1, p.
242.
or for the Junction of States, or parts of States, art. 4, sec. 3, par.
l,p.242.
neither House to adjourn without consent of other, art. 1, sec. 5,
par. 4, p. 52.
of senate required in making treaty, art. 2> sec. 2, par. 2, p. 203.
or in appointing ambassadors, etc., art. 2, sec. 2, par. 2, p. 203.
Conspiracy— to bum ship, Congress may punish for, p. 96.
Oonstitation— construction generally, p. 39.
terms in, how interpreted, p. 40.
preamble, purposes to be secured by, p. 41.
people of united States, who are, p. 4i.
to form a more perfect imlon, p. 42.
to provide for the common defense, p. 43.
creates a government of enumerated delegated powers, p. 43.
construction of terms, to be reasonable, p. 106.
. 116-194.
^ , pp.194 "
judicial department of Government, art. 3, pp. 208-22
State rights, protection of, art. 4, pp. 230-246.
amendments to, manner of making, art. 6, p. 247.
Sower of people to amend, without limit, p. 247.
rst ten amendments, not restrictions on State governments, p.
247.
governments created by, how far supreme, p. 248.
powers not delegated nor prohibited to states, are reserved,
Amdt. art. 10, sec. 1, p. 272.
all power emanates from the people, p. 272.
promiscuous provisions in, art. 6, pp. 248-251.
ratification of, art. 7, p. 252.
names of States, and date of ratification, p. 282.
amendments restrictive of powers of United States' Gtovemment,
pp. 254-372.
resmctlon on Judicial powers, Amdt. art. 11. p. 272.
provision for election of President and Vice-President, Amdt.
art. 12, p. 276.
Blayery prohibited, Amdt. art. 13, p. 277.
citizens of United States who are, and civil rights of, Amdt. art.
14, sec. 1, p. 279.
apportionment of representation in Congress, Amdt. art. 14, sec.
2, p. 285.
certain ^rties disqualified from holding ofllce, Amdt. art. 14, sec.
payment of debt and pensions not to be questioned, Amdt. art.
14, sec. 4, p. 283.
rebel debts not to be assumed, Amdt. art. 14, sec. 4, p. 283.
political rights not to be abridged on account of race, color, etc.
art. 15, p. 287.
Oonstitation of State— a law as to obligation of contracts, pp. 124, 153
amendment of, construed, pp. 124, 167.
Oonsnla— President may appoint, art. 2, sec. 2, par. 2, p. 203.
amenable to Judiciary, art. 3, sec. 2, par. 2, p. 233.
Contempt— power of House topunish for, p. 51.
warrant to commit for, when may be served, p. 51.
Digitized by LaOOQ IC
300
itloo of » ftrt*
p. S7, 84. 124.
9. 125, 129.
p. 129.
Changed by
140.
i.
i6.
168.
I.
;ock, p. 180.
weis, pp. 203
Digitized by LaOOQ IC
301
Oonlncts— (7oftMmM(i.
maritime Jorisdictloii of United States Courts over, p. 252.
to pay in coi|f ederate notes invalid, p. 288.
Oontract with State— how created, p. 128.
acceptance by State of land grant, a contract, p. 108.
-'onot be improved by subsequent legislation, p. 129.
See COHTSAOTS, COSPO&ATIOVS.
Oonvention— for proposing amendments, how called, art. 6, sec 1.
par. 1, p. 247.
Oopyrights— Congress may provide for, art 1, see. 8, par. 8, p. M.
power of Congress defined, p. 94.
what may be secured by, p. M.
State lefl^slation as to, p. 94.
Goiporationa— power of State to tax, pp. 62, 64, 180.
amenable to police power of State, p. 74.
State may impose license tax, p. 76.
as owner of patent, rights of, p. 95.
charter a contract, cannot be impaired by State, p. 150.
legislative control over, p. 1S9.
dissolation of, does not impair obligation, p. 160.
UabUities of extent of State power over, p. 161.
fnmchlse of, construed, p. 1@.
may be exempted from taxation, p. 164.
State concluded by exemption, p. 168.
charter of bank a contract, p. 167.
charter of bridge, ferry, etc., companrconstmed, p. 168.
charter of railroad a contract, p. 170.
Immunity from taxation on cliarter, effect of, p. 172.
State authority over, p. 172.
amendment or alteration of charter, p. 174.
restriction on power of legislature, p. 174.
power to alter or amend reserved in charter, p. 175.
exercise of reserved power by State Legislature, p. 177.
xeservation of power to repeal, p. 178.
charter of municipal corporation not a contract, p. 179.
Iicdslature may authorize subscription to railroad stock, p. 180.
authority of Legislature over municipal officers, p. 181.
over municipal contracts, p. 182.
over municipal liabilities, p. 183.
' over municipal bonds, p. 184.
Costs— State Legislatures may regulate, p. 188.
Counsel— party accused to have right of, Amdt. art 6, sec. 1, p. 267.
provision to apply to United States Courts, p. 267.
Connterfeiting— Congress shall provide punishment for, art 1, sec. 8,
par. 6, p. 92.
distinguished from uttering, p. 92.
power of Congress construed, pp. 92, 107.
Sower, exclusive, when exercised, p. 92.
tate power deflued, p. 92.
Courts— Inferior may be constituted by Congress* art I, sec 1, par. 1,
p. 208.
power construed, p. 206.
ludicial power vested in. art 3, sec. 1, par. 1, p. 206.
indiclal power, extent of, p. 209.
term of ofQce of judges, art 3, sec. 1, par. 1, p. 206.
See Judicial powsb, Jubisdiotiov.
Oonrts-martial— Congress may provide for trials by, p. 100.
DX8TT FED. COK.— SO.
Digitized by LaOOQ IC
902 INDEX.
Credit— to befflTen to public acts and records, art 4, sec. I, par. 1,
Sta&'s not to emit bins of, art. 1, sec. 10, par. 1, p. 116.
bills of credit construed, p. 118.
Oreditor— when bound by State iDSOlvent laws, p. 89.
yalidity of discharge, p. 90.
Orimes— State Jurisdiction over, in territory ceded to Goyemment,
p. 105.
removal from office for, by impeachment, art. 2, sec. 4, par. 1,
~i. 207.
" ».218.
authority to punish for counterfeiting, p. 2
extent of Judicial power, p. 217.
trial of, except in Impeachments, to be by ;
. 3 by Jury, art. 3, sec. 2, par.
3, p. 227. 'J '» »*~
place of trial for, art. 3, sec. 2, par. 3. p. 227.
clause construed, p. 227.
treason defined, and evidence required, art. 8, sec. 3,j;>ar. 1, p. 228.
punishment for treason^ Congress may declare, art. 3, sec. 3, par.
2. D. 229.
idictment, Amdt. art.
. 6, sec. 1, p. 257.
himself, Amdt. art. 5,
it due process of law ,
Its, p. 258.
ied,p.260.
261.
It art. 6, sec. 1, p. 267.
bidden, Amdt. art 8,
Omel or nnnsaal punishments prohibited— Amdt. art 8, sec. l,p. 271.
provision construed, p. 271.
Ourrency— punishment for counterfeiting, p. 92.
Days of grace— no part of contract, p. 135.
Debt of United States— payment of, not to be questioned, Amdt art
14, sec. 4, p. JoO.
Congress has power to pay, art. 1, sec. 8, par. 1, p. 56.
under prior confederation assumed, art. 6, sec. i, par. 1, p. 248.
Debts— incurred in aid of insurrection repudiated, Amdt. art 14, sec.
4, p. 286.
such debts illegal and void, Amdt art 14, sec. 4, p. 286.
Declaration of war— how made, and effect of, p. 97.
power, what includes, p. 97.
Defense— Constitution adopted to insure, Preamble, p. 41.
right of Government to provide for common defense, p. 43.
power of Congress to provide for. art. 1. sec. 8, par. 1, p. 56.
rights of accused in criminal prosecutions, Amdt art 6, sec. 1,
p. 267.
Definitions— arrest, p. 52.
bill of attainder; pp. Ill, 120.
capitation tax, p. il3.
Constitution, p. 41.
direct tax, pp. 46, 113.
Digitized by LaOOQ IC
INDEX. 803
Deflnitioiui— Con^jftiMd.
duties, p. 98.
expottfaeto laws, pp. 112, 121.
Iiigh8eas,p.96.
Impair, p. 131.
Imposts, p. 68.
Insolvency, p. 83.
invention, p. M.
money, p. 91.
necessary means, p. 106.
organizins, p. 102.
people of united States, p. 41.
proper means, p. 106.
regulate, p. 66.
secure, p. 96.
taxation, p. 98.
to coin, p. 91.
to declare, p. 97.
uniform, p. 98.
uniformity, p. 84.
war, p. 97.
Oepartmenta-Appolntment of officers may be vested in, art. 2, sec. 2,
branches of'govemment distinct and independent, p. 44.
See GOVBBNMENT.
Desertion— of seamen, punishment for, p. 100.
statute forfeiture not a bill of attainder, p. 112.
statute not ex pott facto law, p. 112.
Direct taz—when and how laid, art. 1, sec. 9, par. 4, p. 113.
what Is, p. 113.
how apportioned, art. 1, sec. 2, par. 3, p. 45.
constructicm of clause, p. 46.
clause repealed by, Amat. art. 14, sec. 2, p. 285.
Disability— provisions In case of, as to President, etc., art. 2, sec. 1,
par. 5, p. 196.
for office, p. 285.
to hold office by engagement in rebellion, Amdt. art. 14, sec. 3,
p. 285.
may be removed by Congress, Amdt. art. 14, sec. 3, p. 285.
Discharge— In insolvency, who bound by, p. 90.
Discretion— of Congress as to use of means to carry out powers, p. 106.
Disqualification— of Senator or Representative for other office, art.
1, sec. 6, par. 2, p. 53.
for membersnlp of either House, art. 1, sec. 6, par. 2, p. 53.
by engaging in rebellion, Amdt. art. 14. sec. 3, p. 285.
for office of elector of President, art. 2, sec. 1, p. 195.
construction of clause, p. 195.
Distillezies-^ongress may tax or Impose penalties and forfeitures,
p. 58.
District of Oolambia— Congress to exercise exclusive legislation, art.
1, sec. 8, par. 17, p. 102.
inhabitants of, citizens of United States, p. 103.
legislative power of Congress construed, p. 103.
Dockyards— exclvsive control of Congress, art. 1, sec. 8, par. 17, p. 102.
Domestic violence— State right to protection from, art. 4, sec. 4, par.
l,p.245.
Drawbridge— State may authorize erection of, p. 74.
d by Google
301 INDEX.
Due process of law— persons not to be deprived of life, liberty, or
property without, Amdt. art. 6, sec. 1, p. 262.
construction of term, p. 262.
Up. 2
purpose of amendment, p. 280.
State not to deprive of life, lll)ert7, or property without, Amdt.
art. 14, sec. 1, p. 279.
Duties— defined, p. 58.
imposts and excises, power of Congress' to lay, art. 1, sec. S, par.
l,p.56.
to be uniform throughout United States, art. 1, sec. 8, par. 1, p. 66.
no duty or tax to be laid on exports from a State, art. 1, sec. 9.
par. 5. p. 114.
vessels clearing from one State not to pay in another, art. 1. sec.
9, par. 6, p. 114.
exception as to insurrectionary States, p. 114.
vessels of one State not to pay duties in another, art. 1, sec. 9,
oar. 6, p. 114.
no State to lay duty on imports or exports, art. 1, sec. 10, par. 2,
p. 187.
If laid by consent of Congress, net produce to be for use of
United States, art. 1, sec. 10, par. 2, p. 187.
all such laws subject to control and revision of Congress, art. 1.
sec. 10, par. 2, p. 187.
Duties of President— when to devolve on Vice-President, art. 2, sec.
1, par. 6, p. 196.
in case of dmbility of both. Congress shidl declare who shall act,
art. 2, sec. 1, par. 6, p. 196.
Duty on tonnage— no State to lay, without consent of Congress, art. 1.
sec. lofpar. 3. p. 190.
definition of tonnage duty. pp. 190, 191.
as a tax on commerce, p. 192.
subject to alteration and regulation by Congress, art. 1, sec. 4,
par. 1, p. 48.
Election— of Representatives in Congress, art. 1, sec. 2, par. 1, p. 44.
of Senators, how conducted, art. 1, sec. 4, par. 1, p. 48.
each House to Judge of returns and qualincatlons of its members,
art. 1, sec. 5, par. 1, p. 50.
of President, to be by chosen electors, art. 2, sec. 1. par. 2, p. 195b
of President, how conducted, Amdt. art. 12, sec. 1, p. *i7«.
of Executive, Congress may determine day of, art. 2, sec. 1, par.
4, p. 196.
day to be same throughout the Union, art. 2, sec. 1, par. 4, p. 196.
citizenship of itself does not give right to vote at, p. 45.
candidates, who deemed elected, p. 45.
construction of clause, p. 48.
of Bepresentative, tie vote, how determined, p. 49.
elfect of refusal to give certificate of, p. 50.
certificate of, p. 50.
Iilective franchise— right of citizen to vote, Amdt. art. 15, sec. 1, p.
287.
construction of amendments, p. 287.
Congress may enforce provision, Amdt. art. 15, sec. 2, p. 287.
right denied by State, elfect on apportionment of Bepresenta-
tives. Amdt. art. 14, sec. 2, p. S»5.
intent of section, p. 285.
Slectors— citizenship of Itself does not make, p. 45.
For President ana Vice-President— each State to appoint, art. 2,
sec. 1, par. 2, p. 195.
number equal to Senators and Bepresentatives, art 2, sec. 1, par.
2, p. 195.
Digitized by LaOOQ IC
INDEX. 906
Bleoton— jPor Pretident and Vice-Prendent— Continued.
who not eligible, art. 2, sec. 1, par. 2, p. 195.
disqualification of, p. 195.
Congress may determine time of choosing and of voting by, art.
2, sec. l.par. 4, p. 196.
day to be the same throughout the United States, art. 2, sec. 1,
par. 4, p. 196.
to meet and vote by ballot, Amdt. art. 12, sec. 1, p. 276.
ballots for Fresi dent and Vice-President to be distinct, Amdt. art.
r2f8ec. l,p.276.
one at least to be inhabitant of another State, Amdt. art. 12, sec.
l,p.276.
distinct Ust to be made, Amdt. art. 12, sec. 1, p. 276.
to sign, certify, and transmit lists to President of Senate, Amdt.
art. 12, sec. 1, p. 276.
ellgiblKty for office of .p. 277.
vrho disquallfled for office of, Amdt. art. 14, sec. 8, p. 285.
Congress may remove disability, Amdt. art. 14, sec. 3, p. 286.
intent of section, p. 285.
Emancipation— slavery prohibited, Amdt. art. 13, sec. 1, p. 277.
section construed, p. 277.
of slave, claim for loss by, illegal and void, Amdt. art. 14, see. i,
S.286.
ity of act of Congress, p. 97.
Embargo— power of Congress to impose, p. 69.
Eminent domain— sovereignty of people of State, p. 75.
corporations subject to, p. 172.
right of, construed, p. 263.
compensation on condemnation, p. 265.
Emolnments— United States official not to accept, from foreign king,
etc., art. 1. sec. 9, par. 8, p. 115.
Enactment of laws— bills, how passed, art 1, sec. 7, par. 1, p. 54.
course of proceedings on, p. 55.
orders and resolutions, how passed, art. 1, sec. 7, par. 3, p. 5S.
to be approved by President, p. 55.
laws, how passed without President's approval, p. 54.
Enlistment— of minors, power of Congress, p. 99.
Enumeration— of inhabitants, when to be made, art. 1, sec. 2, par. 3,
p. 45.
ratio of representation, art. 1, sec. 2, par. 3, p. 45; art. 14, sec. 2,
p. 2
of rlgh
ghts, not to disparage others retained, Amdt. art. 9, sec. 1,
p. 271.
of means to enforce powers, pp. 107, 108.
Eqnal protection of the laws— no State shall deny, Amdt. art. 14, sec
^ . l,p. 279.
purpose of amendment, p. 280.
equal protection construed, p. 283.
Eqnal snfflrage in Senate— secured to States, art 5, see. 1, p. 247.
Ezcesflive bail— shall not be required, Amdt. art. 8, sec. 1, p. 271.
provision construed, p. 271.
Excises— power of Congress to lay and collect, art. 1, sec. 8, par. 1.
p. 56.
to be uniform, art. 1, sec. 8, par. 1, p. 66.
Exolnsive legislation— by Congress over District of Columbia, art. 1,
sec. 8, par. 17, p. 102.
over places ceded to United States, art. 1, see. 8, par. 17, p. 102.
Digitized by LaOOQ IC
306 INDEX.
Executive Department— powers vested In President, art 1, see. U
par. 1, p. 194.
power of, beyond control of ludiclarv, art. 2, sec. 1, par. 1, p. 194.
election of President and Vice-President, art. 2, sec. 1, par. 2,
p. 195.
only native-bom citizens, to be eligible to such office, art 2, see.
l.par. .^p. 196.
eligibility to office, art. 2, sec. 1, par. 5, p. 196.
heads of may be vested with power to appoint Inferior officers.
art. 2, sec. 2, par. 2, p. 203.
See Pbbsidbnt.
Bzecntive officers— to be bound by oath to support the Constitatlon,
art. 6, sec. 1, par. 3, p. 251.
oath to be taken by President, art. 2, sec. 1, par. 8, p. 197.
of States to be bound by oath, art. 6, sec. 1, bar. 3, p. 251.
President may require written opinions of, art. 2, sec. 2, par. 1,
p. 197.
See PBBSIDBNT, YIOB-PBESIDBNT.
Executive power— vested in President, art 2. sec. 1, par. 1, p. 194.
See Pbbsident.
Exemption— validity of State laws, p. 141.
from taxation, a contract, p. 151.
of corporation from taxation, construed, p. 164.
effect of, p. 165.
Expenditures— of money to be published, art. 1, sec. 9, par. 7, p. 115.
Exports— from States, no tax to be laid on, by Congress, art. 1, sec 9,
par. 5, p. 114.
construction of clause, p. 114.
no State to lay duties on without consent of Ck>ngress, art 1, sec.
10, par. 2, p. 187.
if laid, to be for use of Treasury, art. 1, sec. 10, par. 2, p. 187.
and be subject to revision of Congress, art 1, sec 10, par. 2, p. 187.
Ex post facto laws— defined, pp. 112, 121.
apply to criminal laws only. pp. 112, 121.
shall not be passed, art. 1, sec. 9, par. 3, p. 111.
construction of clause, p. 112.
State not to pass, art. 1, sec. 10, par. 1, p. 116.
prohibition construed, p. 121.
what not ex post facto, p. 123.
imposing higher punishment for second offense is not, p. 12S.
depriving of right to object to grand juror is, p. 123.
when not invalid, p. 155.
Expulsion of member— by concurrence of two-thirds, art. 1, sec 5,
par. 2, p. 61.
Expnrgatory oath— when may be required, p. 120.
Faith and credit— to acts, records, and Judicial proceedings of Che
several States, art 4, sec. 1, par. 1, p. 230.
Fees of oiBce— State may abolish, p. 128.
Felony— members of Congress not privileged from arrest for, art 1,
sec. 6, par. 1, p. 52.
on high seas. Congress shall have power to define and punish, art.
1, sec. 8, par. 10, p. 96.
Fenriet— State may charter, p. 74.
grant of franchise construed, p. 168.
Ferry franchiae— construction of, p. 168.
reserved power to alter or amend, p. 177.
Digitized by LaOOQ IC
INDBX. 307
Fines— excessive, not to be Imposed, Amdt. art 8, sec. 1, p. 271.
constniction of clause, p. 271.
Fisheries— State aathority over, p. 75.
Forcible entry and detainer— State may deprive lessee of action for,
p. 148.
Foreign coin— Congress may regulate value of, art. 1, sec. 8, par. 5,
p. 91.
Foreign corporations— State authority over, pp. 76, 151.
See Co&POBATioir.
Foreign nations— Congress to r^^ulate commerce with, art. 1, sec. 8,
par. 3, p. 65.
Foreign powers— State prohibited from entering into compact with,
art. 1, sec. 10, par. 8, p. 190.
Forfeitnre-«ot to extend beyond life of party attainted, art. 8, sec. 3,
par. 2, p. 229.
Formation of new States— provisions for, art. 4„sec. 8, par. 1, p. 242.
Form of government- States to be guaranteed republican, art. 4,
sec. 4, p. 245.
States to be protected from invasion and domestic violence, art.
4. sec. 4, p. 245.
Forts— exclusive legislation by Congress over sites, art. 1, sec. 8, par.
17, p. 102.
Jurisdiction over sites exclusive in Congress, pp. 104-105.
Franchise— to corporations. State grant construed, p. 168.
statute essentially paralyzing, is void, p. 170.
reserved power to alter, amend, or repeal, pp. 177, 178.
Freedom of speech and of the press— guaranteed, Amdt. art. 1, sec.
l,p.254.
Fugitives— from justice to be delivered up, art. 4, sec. 2, par. 2, p. 287.
demand for surrender, p. 238.
surrender of, p. 239.
terms in clause defined, p. 237.
from service or labor to be delivered up, art. 4, sec. 2, par. 8, p. 241.
exclusive power in Congress, p. 241.
*' in one State," what includes, p. 241.
(General laws-not contracts, but expressions of legislative will. p. 128.
(General welfare— purpose of Constitution to secure, Preamble, p. 41.
Congress shall have power to provide for, art. 1, sec. 8, par. 1,
p. 56.
(Georgia- Bepresentatives in first Congress, art. 1, sec. 2, par. 3, p. 45.
Qold and silver coin— restriction on States as to tender in payment,
art. 1, sec. 10, par. 1, p. 116.
Good behavior— term of judicial officers, p. 206.
mble,p.41.
41.
M.
3. par. 18, p. 106.
8, par. 16, p. 102.
Digitized by LaOOQ IC
808 INDEX.
over forts, arsenals, etc., p. 104.
restriction on State authority, p. 105.
powers may be enforced by laws necessary and proper, art. 1.
sec. 8, par. 18, p. 106.
Incidental powers of, p. 106.
what means may be employed, p. 106.
enumeration of means, pp. 107, 108.
power over public territory and other property, art. 4, sec. 3,
par. 2, p. 243.
to dispose of and make needful rules for, p. 243.
extent of power of, p. 245.
to guarantee republican form to States, art. 4, sec. 4, par. l,p.245.
to protect States from invasion and domestic violence, art. 4.
sec. 4, par. 1, p. 245.
what amendments apply exclusively to, p. 247.
created by Constitution, how far supreme, p. 248.
Constitution, laws of, and treaties, as supreme law, art. 6, sec. 1.
par. 2, p. 248.
powers not delegated are reserved to States, Amdt. art. 10, sec.
l,p.272. '•
oath to be taken by ofScers of, art. 6, sec. 1, par. 3, p. 251.
not to grant any title of nobility, art. 1, sec. 9. p. 115.
GoTemment of States->republlcan form guaranteed, art 4, sec 4.
par. 1, p. 245.
protection from invasion or domestic violence, art. 4, sec. 4, par.
1, p. 245.
power of taxation, pp. 59, 76, ISO, 189.
police powers, as to commerce, pp. 72, 185.
power over internal commerce, p. 78.
authority over fisheries, p. 75.
over licenses, pp. 77, 151.
as to insolvencies, pp. 86, 144.
validity of insolvent laws, p. 88.
over counterfeiting, p. 92.
to call out militia, p. 100.
organization of militia, p. 102.
authority over lands within borders, p. 105.
power to make contracts, p. 128.
land grants, p. 153.
to grant charters to corporations, p. 159.
may regulate rates of freights and fares, p. 170.
authority over corporations, p. 172.
may alter or amend charters, p. 174.
authority over municipal corporations, p. 179.
GoTemment, seat of— legislative powers of Congress, art 1, sec 8.
par. 17, p. 102.
Grand jury— indictment or presentment, personal rights, Amdt. art.
5, sec. 1, p. 257.
crimes to be tried on presentment of, Amdt. art 5, sec. 1, p. 2S7.
exceptions as to land and naval forces and militia, Amdt art 5.
sec. 1, p. 257.
Grant— of letters of marqne and reprisal, art. 1, sec. 8, par. 11, p. 97.
States inhibited, art. 1, sec. 10, par. 1, p. 116.
of titles of nobility prohibited to Qovemmen^, art 1, sec. 9, par.
6, p. 115.
States inhibited from grant of titles, art. 1, sec. 10, par. 1. p. 118.
by State, when not subject to subsequent legislation, p. 154.
of franchise, construction of, p. 168.
Grants— of land by State, contracts, cannot be impaired, p. 16S.
of franchises are contracts, p. 168.
Digitized by LaOOQ IC
niDEX. 909
Grievancesorlglit of petifion for redresffof, Amdb art. 1, soc. I, p. 254.
Gaarantee— of republican form of Oovemment to States, art. i, sec.
4, par. 1, p. 245.
of protection of States from invaslonand domestic vlolencerart.
4, sec. 4» par. 1, p. 245.
Habeas corpns— writ not to be suspended, unless, art. 1, sec. 9, par. 2,
p. 110.
dlscnaive of enlisted persons under, p. 98.
power to suspend where lodged, p. 110.
congress may suspend writ, p. 97.
Hirads of departments— may be vested wifli power to appoint offi-
cers, art. 2, sec. 2. par. 2. p. 203.
President may require written opinions from, art. 2, sec. 2, par.
l.p.197.
Health— State may pass laws for protection of, pp. 72, 185.
High crimes and misdemeanors— remoTal of of&cers on impeach-
ment for, art. 2, sec. 4, p. 207.
High seaa— defined, p. 96.
House of Representatives— composed of members chosen every sec-
ond year, art. 1, sec. 2, par. 1, p. 44.
qualification of electors, art. 1, sec. 2, par. 1, p. 44.
qualification of member, age, and residence, art. 1, sec. 2, par. 2,
p. 45.
State executives to issue writs of election, art. 1, sec. 2, par. 4, p.
46.
shall choose Speaker and other officers, art. 1, sec. 2, par. 5, p. 47.
shall have sole power of impeachment, art. 1, sec. 2, par. 5, p. 47.
shall judge elections, returns, and qualifications of its members,
art. 1, sec. 5, par. 1, p. 50.
a majority to constitute a quorum, art. 1, sec. 5, par. 1, p. 50.
less, may adiourn from day to day, art. 1. sec. 5, par. 1, p. 50.
may determine its rule of proceeding, art. 1, sec. 5, par. 2, p. 51.
powers generally, p. 61.
may punish for disorderly behavior, or expel a member, art. 1.
sec. 6. par. 2, p. 51.
construction of clause, p. 51.
shall keep Journal of proceedings, art. 1, sec. 5, par. S, p. 53.
restriction on power to adjourn, art. 1, sec. 5, par. 4, p. 52.
members not to be questioned for speech or debate, art. 1, see. 6,
jpar. l,p.52.
United States official not eligible to membership, art. 1, sec. 6,
par. 2, p. 53.
members ineligible to offices created during their membership,
art. 1, sec. 6, par. 2, p. 53.
bills for raising revenue to originate in, art. 1, sec. 7, par. 1, p. 54.
clause construed, p. 54.
votes for President and Vice-President to be counted in presence
of, Amdt. art. 12, sec. 1, p. 276.
when and how to choose President, Amdt. art. 12, sec. 1, p. 276.
vote to be taken by States, Amdt. art. 12, sec. 1, p. 276.
quorum in such case, what to constitute, Amdt. art 12, sec. 1, p.
276.
majority of States necessary to choice, Amdt. art. 12, sec. 1, p. 276.
disability to membership by participation in rebellion, Amdt. art.
14, sec. 3, p. 285.
Congress may remove disability, Amdt. art. 14, sec. 3, p. 285.
See Ck>safiB88.
Immigration— State cannot discourage, p. 71.
Digitized by LaOOQ IC
310 INDEX.
Itai]iiimitie(i->prtvneffe of member of Ckmgress from arrest, urt. 1« sec.
6, par. 1, p. 52.
soldiers not to be quartered In time of peace, Amdt. art. 8, sec . U
p. 256.
rights of citizens, art. 4, sec. 2, par. 1, p. 2S3.
Immunities defined, p. 234.
no person to be twice in Jeopardy for same offense, Amdt. art. 5,
sec. 1, p. 257.
who are citizens of United States, Amdt. art. 14, sec. 1, p. 279.
privileges and Immunities of citizens not to be abridged, Amdt.
art 14, sec. 1, p. 279.
State not to deprive of life, liberty, orpropertjrwlthont dne proc-
ess of law, Amdt. art. 14, sec. 1. p. 279.
nor deny the equal protection of the law, Amdt. art 14, sec. 1, p*
279.
ftom taxation, in charter, construed, p. 172.
^ited,p.lie.
140.
p. 145.
I.
contract, p. 164.
.168.
72.
St, p. 179.
184.
Digitized by LaOOQ IC
INDBX. 811
ZinpaJnnent of remodlefl— when problblted, p. 1S6.
cluuige of remedy, when may be made, p. U7.
what is not. p. 1S9.
exemption laws, when valid, p. 141.
^y laws, when valid, p. 142.
See COHTBAOTB.
Impainnent of rights— constraed, p. 156.
what is not, p. 156.
See GoHTSAOTS.
Xmpeaohment— Hoose to have sole power of, srt. 1, see. 2, par. b, p.
two-thirds necessary for conviction, art. 1, sec. 8, par. 6, p. 48.
judgment, extent of, on conviction, art. 1, sec. 8, par. 7, p. 48.
judgment, not to bar indictment and punishment, art. 1, sec 8,
par. 7, p. 48.
who removable on Impeachment, art. 2, sec. 4, par. 1, p. 207.
cases not to be tried by jury, art. 3, sec. 2, par. 8, p. 227.
Importation of slaves— restriction on powers of Congress, art. 1> sec.
9,par. l,p. 109.
tax may be Imposed, art. 1, sec. 9j;Mur. 1, p. lOB.
power of Congress construed, p. 6flf.
See Chinesb.
Zmportt or exports— State shall not lay without consent of Congress,
art. 1, sec. 10. par. 2, p. 187.
If laid by State, for use of Treasury, art. 1. sec. 10, par. 2, p. 187.
shall be subject to revision by Congress, art. 1, sec. 10, par. 2, p.
what imports Include, p. 187.
Imposts-defined, p. 58.
Congress to lay, art. 1, sec 8, par. 1, p. 56.
Imposts and excises— Congress shall have power to lay and collect,
art. 1. sec. 8, par. 1, p. 187.
definitions, p. 187.
to be uniform throughout States, art. 1, sec. 8» par. 1, p. 56.
Incidental power— of Oovemment, p. 106.
to punish for offenses, p. 108.
power to enforce execution of judgment, p. 106.
to regulate proceedings on execution, p. 106.
Income tax— Salaries of State officers not subject to, p. 58.
Incompatible offices— members of Congress cannot hold other cMl
office, art. 1, sec. 6, par. 2, p. 53.
what offices are, p. 63.
United States liarshal cannot be commercial agent, p. 115.
Indians— excluded from representation, art. 1, sec. 2, par. 8, p. 45;
Amdt. art. 14, sec. 1, p. 285.
not foreign subjects, nor citizens, p. 78.
may enforce rights in State courts, p. 78.
may be sued in State courts, p. 78.
on reservation within State, how governed, p. 80.
laws and customs of, p. 81 .
when may be naturalized, p. 82.
Indian Territory— within State, power of Congress construed, p. 79.
Indian tribes— Congress to regulate commerce with, art. 1, sec. 8, par.
8, p. 65.
commerce with Indians, p. 78.
construction of clause, p. 79.
Digitized by LaOOQ IC
312 INDEX.
X q^t»»i tribea— ObfiMfioetf .
within States. State laws no force over, p. 79.
right to use of soil can only he divested by Oovenimeint, p. 80.
Indian laws and customs to rule, p. 81.
Indictment, or presentment— essential to trial for capital or Inf^
mous crime, Amdt. art. 6, sec. 1, p. 257.
except in cases in land and naval forces and militia, Amdt. art.
5, sec. 1, p. 257.
of person convicted on impeachment, art 1, sec. 3, par. 7, p. 48*
Inferior conrta— power of Congress to establish, art. 1, sec. 8, par. 9,
p. 96.
ludicial power vested in. art. 3, sec. 1, par. 1, p. 208.
}udffM to hold office during good behavior, art. 8, sec. 1, par. 1, p.
compensation not to be diminished during official term, art. 3,
sec. 1, par. 1, p. 208.
Inferior officers— Congress may Invest appointment of, where they
think' proper, art. 2, sec. 2, par. 2, p. 208.
Inherent rights— protection of, p. 261.
Inhabitant— defined, p. 45.
status of, in sites purchased by Government, p. 105.
Inaolvent laws— bankruptcy and Insolvency equivalent terms, p. 83.
laws, when operative, p. 86.
when suspended bv Bankrupt Act, p. 87.
cibuous ux UUI61' oiMvatif when bound by, pp. 89. 90.
Congress may make the United States a preferred creditor, p.
Inspection laws— Congress may make, p. 67.
States may enact, pp. 72, 185.
State laws subject to revision by Congress, p. 189.
>ns— Cc
r . 15, p.
Insnxrections— Congress to provide for suppression of, art. 1, sec. 8,
par. 15, p. loo.
paracipants in, disqualified for office, Amdt art 14, sec. 3, p.
285.
Congress may remove disabilities, Amdt art 14, sec 3, p. 285.
debts contracted in aid of, void, Amdt 14, sec. 4, p. 286.
Zntemal oommerce— States may regulate, p. 73.
Invasion— States may engage in war, art. 1, sec. 10, par. 8, p. 190.
writof habeas corpuSjewpenaipjij>t,art.U sec. 9, par. 2, p. llo._
Congress may call militia out to repel, art 1, sec 8, par. 15, p. 100.
ppwer^tore|Ml, construed, p. lUO.
united States to protect each State against, art. 4, sec 4, par. 1,
p. 245.
Invention— defined, p. 95.
Inventors— Congress to pass laws to secure rights to, art 1, sec 8, par.
8, p. 94.
Involuntary servitude— Abolition of, except for crime, Amdt art 13.
sec. 1, p. 277.
power of Congress to enforce provision, Amdt art 13, sec 2, p.
clause construed, p. 278.
Jeopardy of life and limb— person not to be twice subject to, Amdt.
art. 6, sec. 1, p. 257.
Jeopardy construed, p. 259.
Joint resolution— approved, elfect of, as law, p. 56.
Journal of proceedings— each House to keep, art 1, sec 6, par. 8, p. 5.
Digitized by LaOOQ IC
INDEX. 813
Judges— of United States courts to hold office during good bebayior,
art 3, sec. 1, par. 1, p. 208.
compensation not to be diminished dnring tenn, art 3» sec. 1, par.
Congress cannot limit, p. 215.
in eyerv State, bound by Constitntion. laws, and treaties of
United States, art. 6, sec. 1, par. 2, p. 148.
Tadgment— in impeachment cases to extend only to remoyal from
office, art. 1, sec. 3, par. 7, p. 48.
not a bar to indictment and trial at law, art. 1, sec. 3, par. 7, p. 48.
of State courts, effect of authentication of, p. 281.
Judicial Department— power, where vested, art. 8, sec 1, par. 1. p.
Supreme and inferior Courts, art. 3, sec. 1, par. 1, p. 208.
tenn of office and compensation of judges, art. 3, sec. 1, par. 1, p.
judicial power of, p. 209.
extent of power, p. 215.
jurisdiction of courts, p. 210.
of United States courts, art 3. sec. 2, par. 1, p. 215.
of territorial courts, p. 212.
authority of State courts, p. 213.
removal of causes, p. 214.
jurisdiction of Supreme Court, art 3, sec. 2, par. 2, p. 228.
extent of jurisdiction, p. 215.
extent of Judicial power, p. 217.
as to persons, p. 219.
original jurisdiction construed, p. 223.
appellate jurisdiction construed, p. 225.
Judicial notice— of close of rebellion, p. 110.
of general statute, p. 55.
Judicial power— where vested, art 3, sec 1, par. 1, p. 206.
Congress may constitute inferior tribunals, arc. i, sec. 8, par. 9, p.
art. 3, sec. 1, par. 1, p. 208.
vrlat, art. 8, sec. 1, par. 1,
ring continuance in office,
W.
210.
tenure of office, p. 215.
t. 3, sec. 2, par. 1, p. 215.
TB, and treaties, art 3, sec.
isters, and consuls, art. 3,
sec. 2, par. 1, p. 215.
es is a party, art. 3, see. 2,
sec. 2, par. 1, p. 215.
sitixens of another State,
foreign States or citizens.
Digitized by LaOOQ IC
DB8TT Ted, Cow.— jw.
314 INDEX.
JncUcial Tpoww—Continued.
as to persons, p. 219.
admiralty and maritime, p. 221.
over maritime contracts, p. 222.
in cases affecting ambassadors, etc., Snpreme Court to have
original Jurismction, art. 3. sec. 2, par. 2, p. 223.
in all other cases to liave appellate lurisdiction, art. 8, sec. 2, par.
2, p. 223.
trial oi crimes, except Impeachment, to be by jury, art. 3, sec. 2,
par. 3, p. 227.
trial to be held in State where crime committed, art. 3, sec 2,
par. 3, p. 227.
when not committed within State, Congress may direct, art. 3,
sec. 2, par. 3, p. 227.
not to extend to cases against a State by citizens of another State,
or a foreign State. Amdt. art. 11, sec. 1, p. 276.
extent of resmctlon, p. 275.
Judicial proceedings— of State, full faith and credit to be given, art.
4, sec. 1, par. 1, p. 230.
manner of proving, may be prescribed by Congress, art. 4, sec. 1,
par. 1, p. 230.
power of State legislation, p. 145.
Jndicial officers— to be bound by oath to support Constitution* art.
6, sec. 1, par. 3, p. 251.
Jurisdiction— of Supreme Court, appellate and original, art. 8, sec. 2,
par. 2, p. 223.
of inferior tribunals, art. 1, sec. 8, par. 9, p. 96.
of United States courts, art. 8, sec. 2, par. 1, p. 215.
extent of, p. 215.
as to the person, p. 219.
admiralty and maritime, p. 221.
over maritime contracts, p. 222.
of Snpreme Court, p. 210.
original defined, p. 223.
appellate defined, p. 225.
of territorial courts, p. 212.
of State courts, when prohibited, p. 213.
of (Jovemment over ceded territory, p. 108.
of State, when attaches in insolvency, p. 86.
Jury— trial of crimes except on impeachment to be by jury, art. 3,*
sec. 2, par. 3, p. 227.
accused to nave speedy and public trial by, Amdt. art. 6, sec. 1, p.
267.
suits at law where value over twenty dollars, Amdt. art. 7. sec. 1.
p. 288.
fact not to be re-examined except by rules of common law, Amdt.
art. 7, sec. l,p.268.
Just compensation— property not to be ttAen for public use without,
Amdt. art. 5. sec. 1, p. 257.
Justice— purpose of Constitution to establish. Preamble, p. 41.
fugitives from, to be delivered up, art. 4, sec. 2, par. 2, p. 237.
fugitive defined, p. 297.
Labor— fugitives from, to be delivered up, art. 4, sec. 2, par. 2, p. 241.
power of Congress exclusive, p. 241.
in one State defined, p. 241.
Land and naval forces— Congress may govern and regulate, art 1,
sec. 9, par. 14, p. 100.
Land grants— by State, conclusive on future legislation, p. 153.
Digitized by LaOOQ IC
IMDBX. 815
liow of the land--Coiist!tatioii, Uws, and trestles eoDStltate, art 6,
sec. 1, iMT. 2 ,p. 248.
judges In every State bound by, art 6, sec. I, par. 2, p. 24S.
Law— wbat Includes, p. 124.
retrospectlTe, not necessarily Invalid, p. 128.
limit of effect of State laws, p. 126.
In conflict with acts of Congress, must give way, p. 126.
Law of nations— o^Iense against. Congress may provide pmilshmen.
for, art. 1, sec. 8, par. 10, p. 96.
privacy under, p. 96.
slave trade, not privacy under, p. 96.
Law»-Congre8s may provide for execution of, art 1, sec. 8, par. 15, p
and In powers vested in Government or any department or
officer, art 1, sec. 8, par. 18, p. 106.
of United States, President to see fUtbful execution of, art 2
sec. 9, par. 1. p. 206.
clause construed, p. 207.
Ittdicial power to extend to all cases arising under, art 3, sec. 2,
par. Vp. 215.
Legal tender— power of Congress to create, p. 62.
discretion of Congress In creating, p. 91.
Acts of Congress construed, p. 91.
may make treasury notes a, p. 106, 112.
inhibition as to> States, art 1, sec. 10, par. 1, p. 116.
statutes creating, are void, p. 120.
Legislation— power of, vested In Congress, art 1. sec. 1, p. 44.
political power not subject to Jualciai Interference, p. 44.
powers of, how construed, p. 66.
exclusive In Congress, over District of Columbia, art. 1, sec. 8,
par. 17, p. 102.
andTover places purchased for forts, arsenals, etc., art 1, sec. 8,
par. 17, p. 102.
Congress to make laws necessary for operation of powers of Gov-
ernment, art 1, sec. 8. par. 19, p. 106.
may enforce article prohibiting slavery, Amdt art 13, sec. 2, p.
may enforce Fourteenth Amendment, Amdt art 14, sec. 5, p. 286,
may enforce Fifteenth Amendment, Amdt. art. 15, sec. 2, p. 287.
' Xiaeislalive Department— powers vested in Congress, art 1, sec. 1, p.
House of Bepresentatlves, how composed, art 1, sec. 2, par. 1, p.
electors of, who are, p. 45.
gualiflcations of members of House, art. 1, sec. 2. par. 2, p. 45.
Representatives, how apportioned among States, art. 1, sec. 2,
par. 3, p. ail repealed, Amdt art. 14, sec. 2, p. 285.
construction of clauses, pp. 46, 285.
vacancies, how filled, art. i, sec. 2, par. 4. p. 46.
shall choose Its own officers, art. 1, sec. 2, par. 5, p. 47.
Senate, how composed, art. 1, sec. 8, par. i, p. 47.
classes of Senators, art. 1, sec. 3, par. 2, p. 47.
vacancy, how filled, p. 47.
qnallficatlon for Senator, art 1, sec. 3, par. 3, p. 47.
construction of clause, p. 47.
Ylee-Presldent to be President of Senate, art. 1, sec. 3, par. 4, p.
48.
Senate to choose its own officers, art. 1, sec. 8, par. 6, p. 48.
as a court of Impeachment, office of, art 1, sec. 3, par. 6, p. 48.
Judgment of, in cases of Impeachment, art 1, sec 3, par. 7, p. 48.
Digitized by LaOOQ IC
316 Dn>EX.
LegislatiTe power of United States— to be Tested In Ckingress, art. 1,
• 860.1, p. 44.
of State, over Judicial proceedings and remedies, p. 145.
of State, over corporations and corporate officers, p. 181.
Letters of marque and reprisal— Congress may grant, art 1, sec. 8.
par. 11, p. 97.
State problDited from granting, art 1, sec. 10, par. 1, p. 116.
Liberty— purpose of Constitution to secure. Preamble, p. 41.
person not to be deprived of. witliout due process of lawrAmdt
art. 5, sec. 1. p. 257.
of wbom, entitled to protection, p. 261.
amendment construed, p. 261.
State cannot deprive person of, etc., Amdt art 14, sec 2, p. 279.
purpose of amendment, p. 280.
Licenses— State authority over, pp. 66, 67.
license a contract, revocable at will, p. 151.
from United States, effect and operation of, p. 77.
Liens— created by law are subject to legislative control, p. 147.
validity of taxation, of laws, p. 150.
Life— no person to be deprived of, without due process of law, Amdt.
art 6, sec. 1, p. 257.
no person to be twice put in Jeopardy of, Amdt art 5, sec. 1, p.
257.
amendment construed, p. 261.
same restriction on powers of States, Amdt art. 14, sec. 1, p. 279.
purpose of amendment, p. 280.
Limitation— statutes of, when do not impair obligation of contract, p.
of powers of (General Government, art. 1, sec. 9, pars. 1-8, pp. 109-
of powers of State sovereignty, art. 1, sec. 10, pars. 1-3, pp. 116-
193.
of powers of Congress. Amdt. arts. 1-10, pp. 254-274.
of judicial power of United States, Amdt art. 11, sec. 1, p. 275.
extent of restriction of Judicial power, p. 275.
of actions, power of Congress to provide for, p. 108.
Loss of slave— claim for, illegal and void, Amdt art 14, sec 4, p. 286.
Magazines, arsenals, etc— Congress to have special Jurisdiction, art.
1. sec.8, par.'n.p. 102.
jurisdiction over sites, p. 104.
jurisdiction exclusive, p. 105.
Mails— Congress may provide for carriage of, p. OS.
may prohibit transportation of certain circulars In, p. W.
plenary power of Congress, p. 98.
contractor for carriage of, liable for State toUs, p. 93.
Majority— of each House to constitute a quorum, art 1, sec 6, par. 1,
smaller number may adjourn, and compel attendance, art. 1, sec
5, par. l^p. 50.
quorum of House in case of election of President, Amdt art. 12,
sec. 1, p. 276.
of Senate in case of election of Vice-President Amdt art 12, sec
l,p.276.
two-thirds of Senate, on trial of Impeachment, art 1, sec 3, par.
6, p. 48. *^
Maritime oontraot—Jnrlsdiction over, p. 222.
Digitized by LaOOQ IC
INDEX. 317
AEaritime jnrisdlctionHiicUcial power to extend to, art. 8, sec. 5, par.
I,p.2l5.
where lodged, p. 221.
over mariume contracts, p. 222.
Marque and reprisal— Congress may grant letters of, art 1, sec. 8,
•par. 11, p. 97.
no State shall grant letters of, art. 1, sec. 10, par. 1, p. 116.
Marriage— between Indians, laws regulating, p. 81.
Marshal— of Fnited States cannot be commercial agent of forelgc*
nation, p. 115.
Martial law— defined, p. 200.
power of President to proclaim, p. 200.
effect of, on privilege of witness, p. 110.
Maryland— Representatives in first Congress, art. 1, sec. 2, par. 3, p. 45.
Massachusetts— Bepresentatives in first Congress, art. 1, sec. 2, par. 3,
p. 45.
Means— of enforcement of power. Government to have, art. 1, sec. 8,
par. 18, p. 106.
enumeration of means, pp. 107, 108.
Measures— Congress shall fix standard of, art. 1, sec. 8, par. 5, p. 91.
Meeting of Congress— at least once a year, art. 1, sec. 4, par. 2, p. 49,
Members of Congress— and of State Legislatures, to be bound by
oath, art. 6, sec. 3, p. 251.
Merchandise— State may license sale of, p. 77.
Migration— construed, p. 109.
limitation of power of Congress, art. 1, sec. 9. par. 1, p. 109.
section not to apply to State Governments, p. 109.
See Chines B.
Military commander— cannot suspend privilege of writ of Jutbeas cor*
pui,\}. 110.
Military reservations— jurisdiction exclusive in Government, p. 105.
Militia— Congress shall provide for calling forth, art. 1, sec. 8, par. 15,
p. 100.
power of Congress, when supreme, p. 99.
limitation of power, p. 100.
shall provide for organizing, arming, and disciplining, art. 1, sec.
8, par. 16, p. 102.
construction of clause, p. 102.
authority of Government, when exclusive, p. 102.
shall provide for govemiiur, art. 1, sec. 8, par. 16, p. 102.
to execute laws, suppress insurrections, and repel invasions, art.
l,8ec. 8, par. 15, p. 100.
concurrent power or State to call out, pp. 101, 102.
appointment of ofAcers and training reserved to States, art. 1,
sec. 8, par. 16, p. 102.
discipline to bo prescribed by Congress, art. 1, sec. 8, par. 16,p. 102.
right of people to bear arms not to be infringed, Amdt. art. 2^
sec. l.p. 255.
right of State to maintain, Amdt. art. 2, sec. 1, p. 255.
Minister— appointment of, p. 203.
Jurisdiction of courts over, p. 223.
Misdemeanors— impeachment and removal for, art. 2, sec. 4, par. 1,
p. 207.
Money— Congress may borrow on credit of United States, art. 1, sec.
8, par. 2, p. 61.
what power includes, p. 61.
Digitized by LaOOQ IC
818 INDEX.
shall have power to coin. art. 1, sec. 8, par. 6, p. 91.
may issue notes to circulate as, p. 61.
may restrict circulatlou of other notes, p. 61.
what constitutes, p. 61.
definition of, p. 91.
to be drawn from treasury only In consequence of appropria-
tions, art. 1, sec. 9, par. 7, p. 115.
statement of receipts and expenditures to be published, art. I,
sec. », par. 7, p. 115.
no appropriation for armies to be for more than two years*
art. I , sec. 8, par. 12, p. 99.
States not to coin silver or f^old, art. I. sec. 10, par. 1, p. 116.
States not to make other than coin a legal tender, art. 1. sec. 10,
par. 1, p. 116.
More perfect union— object of Constitution to form, Preamble, p. 41.
construction of term, p. 52.
Municipal bonds— authority of State over, p. 184.
Municipal contract— State authority over, p. 183.
Municipal corporation— charter not a contract, p. 179.
subscription to railroad stock, p. 180.
authority of Legislature over officers of, p. 181.
over contracts of, p. 182.
over liabilities of, p. 183.
over bonds of, p. 184.
Congress cannot tax revenues of, p. 58.
corporations may regulate sale of liquors, p. 77.
State may authorize to issue certificates of indebtedness, p. 118.
Municipal liabilities— authority of State over, p. 183.
Mutiny— Congress may punish for attempt to commit, p. 96.
Nations— power to regulate commerce with, art. 1. sec. 8, par. 8, p. 69.
power to punish offenses against law of, arc. 1, sec 8. par. 10,
p. 06.
National banks— means to enforce powers delegated, p. 108.
State cannot tax, p. 64.
National conscription— Congress may authorize, p. 99.
National militia— how constituted, p. 101.
Natnralization— Congress to establish uniform rule of, art. 1, sec 8,
par. 4. p. 81.
construed— effect of, p. 82.
citizens by, to be citizens of United States, aAd States where
they reside, Amdt. art. 14, sec. 1, p. 279.
purposes of amendment, p. 280.
Naval foToes— Congress shall make rules and regulations for, art. 1,
sec. 8, par. 14, p. 100.
Navigable rirers— license to erect dams in. Is revocable, p. 161.
State may erect draw-bridge, p. 74.
Navigable waters— of State and United States distinguished* p. e7.
power of Congress over, p. 67.
Navigation— apart of commerce, p. 67.
power of Congress to regulate, p. 67.
Navy— Congress to provide and maintain, art. 1, sec. 8, par. U, p. 100.
grant of power construed, p. 100.
Necessity— the test of incidental powers, p. 106.
Digitized by LaOOQ IC
INDBX. 319
New Hampshire— Bepresentatlves In first Congress, art. 1, sec. 2,
par. 3, p. 45.
New Jersey— Bepresentatives In first Congress, art. 1, sec. 2, par. 3,
p. 45.
New States— may be admitted by Congress, art. 4, sec. 3, par. 1, p. 242,
. , . .^ , ...^ ._ . _i_ ,. ^^ other without consent
not to be formed within jurisdiction of anotJ
of Congress, art. 4, sec. 3, par. 1, p. 242.
nor be formed by junction of two States without consent, art. 4
sec. 3, par. ], p. 242.
construotfon of clause, p. 242.
have same absolute rights as other States, p. 75.
title to soil under tide waters, vests in, p. 75.
New York— Bepresentatives in first Congress, art. 1, sec. 2, par. 8. p. 46,
Nobility— titles of, not to be granted by United States, art. 1, sec. 9,
par. 8, p. 115.
no State to grant title of, art. 1, sec. 10, par. 1, p. 116.
Nominations— to office by President, art. 2, sec. 2, par. 2, p. 203.
North Oarolina— Bepresentatives in first Congress, art. 1, sec. 2, par.
3, p. 45.
Number of electors—for President and Tice>Presidenty art. 2, sec. 1,
par. 2, p. 195.
Oath of offlce— of President, art. 2, sec. 1, par. 8, p. 197.
exclusively for the President, p. 197.
power of Congress to prescribe, p. 107.
exclusively for the President, p. 197.
power of Congress to prescribe, p. 107
what officers to take, art. 6, sec. I, par. 3, p. 251.
provision directory, p. 251.
Oath or affirmation- warrants to be supported by, Amdt«art. 4, sec.
1, p. 256.
to support the Constitution, art. 6, sec. 1, par. 3, p. 251.
to be taken by all officers, p. 251.
effect of omission to take, p. 251.
provisions of State Constitutions, requiring test oaths, void, p.
religious test not to be required as a qualification for office, art.
6, sec. 1, par. 3, p. 251.
Senators on trial of impeachment to be on, art. 1, sec. 3, par. 6,
p. 48.
to be taken by members of Congress, art. 6, sec. 1, par. 8, p. 251.
Objections by President— on return of bill, art. 1, sec. 7, par. 2, p. 54.
Obligations— existing, ratified by Constitution, art. 6, sec. 1, par. 1,
incuired In aid of rebellion, void, Amdt. art. 14, sec. 4, p. 286.
Obligations of contract— Congress not Inhibited from violating, pp.
Congress may change currency in which to discharge contract,
p. 62.
Statie Constitution cannot Impair, p. 124.
amendment to, cannot impair, p. 124.
not to be impaired by State legislation, art. 1, sec. 10,- par. 1, p.
of other things than contracts not protected, p. 130.
validity, construction, and remedy are parts, of, p. ISO.
obligation construed, p. 130.
Impair defined, p. 131.
degree of Impairment, p. 133.
discharge of contract is an impairment, p. 131.
Digitized by LaOOQ IC
320 INDEX.
ObllgatlonB of contract— Con^tnu^.
glvlngr diminisliea value or divesting prior liens is, p. 131.
releasing one party from any stipulation In, is, p. i3i.
validity may be affected by subsequent statute of frauds, Is, p. 133.
any variation postponing or imposing conditions is, p. 133.
any statute in contravention is, u. 133.
"What not Impairment, pp. 134, 135.
remedy as part of obligation, p. 136.
remedy, bow far may be changed, p. 137.
what not impairment of remedy, p. 139.
statute of Limitations and usury laws, effect of, p. 140.
exemption laws, when invalid, p. 141.
stay laws, how lar invalid, p. 141.
insolvency laws, when valid, p. 144.
laws regulating judicial proceedings, when valid, p. 145.
rights created Dv statute, legislative power over, p. 147.
right of redemption, p. 149.
confirmatory acts not an Impairment, p. 154.
statute perfecting a voidable entry is not, p. 155.
Occupationa— State may license exercise of, p. 76.
Offenses— against law of nations. Congress may provide punishment
for, art. 1, sec. 8, par. 10, p. 96.
President may grant reprieves or pardons, art. 2, sec. 2, par. 1,
p. 197.
no person to be put twice In jeopardy, Amdt. art. 5, sec. 1, p. 257.
Jeopardy construed, p. 259.
Office— who Ineligible for members of House of Bepresentatlves, art.
1, sec. 2, par. 2, p. 45.
Snalification for, p. 45.
enator or Representative not eligible for other offtce, art. 1, sec.
7, par. 2, p. 53.
holder of United States office not eligible for Congress, art. 1,
sec.6,par. 2,p. 53.
If created during his term, art. 1, sec. 6, par. 2, p. 53.
holder of, not to accept present or emolument from foreign king,
etc.. art. 1, sec. », par. 8, p. 115.
term of, of President and Vice-President, art. 2, sec. 1, par. 1,
p. 194.
of President, when to devolve on Vice-President, art. 2, sec. 1,
par. tf , p. 196.
who precluded from office of elector, art. 2, sec. 1, par. 2, p. 195.
appointment to and removal from— power of President, art. 2,
sec. 2, par. 2, p. 203.
clause construed, p. 204.
appointment to, not a contract irrevocable, p. 128.
vacancy In, when may be filled by President, art. 2, sec. 2, par. 3,
p. 206.
commissions to expire at end of next session, art. 2, sec. 2, par.
3, p. 206.
who ineligible as Senator, Bepresentative. or Presidential elector,
Amdt. art. 14, sec. 3, p. 285.
religious test not required as qualification for, art. 6, sec. 1, par.
3, p. 251.
oath of, art. 6, sec. 1, par. 3, p. 251.
Oficers— Congress may vest appointment of inferior officers where it
thinks proper, art. 2, sec. 2, par. 2, p. 203.
removal on impeachment for certain crimes, art. 2, sec. 4, par. 1,
p. 206.
who removable on Impeachment, art. 2, sec. 4, par. 1, p. 207.
of House of Representatives to be chosen by itself, art 1, sec 2,
par. 6, p. 47.
Digitized by LaOOQ IC
DIDKX. 831
Senate to clioose its own, art. 1, sec. 3, par. 6, p. IB.
dvU. of United States, who are, p. 207.
Opiniozi of offlcers-of executive departments, may 1>e leqvdre^lj
President, art 2, sec. 2, par. 1, p. 197.
Orders— resolutions and vote to be presented to President, art. 1, sec
7, par. 3, p. 55.
to be appmved by President, p. 55.
Ordinance— of secession, null and void, p. 116.
effect of, p. 116.
Organizing— defined, p. 102.
miUtia, Congress to provide for, art. 1, sec. 8, par. 16, p. 102.
Original jurisdiction— of Supreme Court, art. 3, sec. 2, par. 2, p. 228.
construction of clause, p. 223.
Orert act— necessary to treason, art. 3, sec. 3, par. 1, p. 228.
Oysters— State may regulate planting and growth of, p. 76.
See FiSHBUBS.
Fapera-security from unreasonable searches, Amdt. art. 4, sec. 1.
p. 256.
Pardons— President may grant, except incases of impeachment^ art. 2,
sec. 2, par. l,p. 107.
pardoning power construed, p. 201.
Passengers— State no power to levy tax on, p. 71.
Sower of Congress to pass laws concerning, p. 69.
tate cannot Impose burdens and conditions on, p. 71.
State may exclude criminals and paupers, p. 72.
can never be subject to State laws until incorporated In State,
p. 109.
See CHiiTBSB.
Patent rights— Congress may pass laws securing, art 1, sec. 8, par. 8,
p. 94.
power of Congress defined, p. 94.
patent laws in general, p. 95.
rights of inventors secured, p. 96.
for medicine, does not confer right to use it, p. 95.
Payment— of public debt not to be questioned, Amdt. art. 14, sec. 4,
of pensions, not to be questioned, Amdt. art. 14, sec. 4, p. 286.
Penalties— of absentees in Congress, art. 1, sec. 5, par. 1, p. 50.
Pensions and bounties— debts for, not to be questioned, Amdt art.
14, sec. 4, p. 286.
Congress may secure receipt of, p. 107.
Pennsylvania— Bepresentatlves at first Congress, art. 1, sec. 2, par. 3,
p. 45.
People— Constitution formed by, Preamble, p. 41.
of United States, who are, p. 41.
powers devolve on people of United States, p. 59.
sovereignty of, dates from revolution, pp. 59, 75.
right of peaceable assemblage shall not be abridged, Amdt. art.
1, sec. 1, p. 254.
right to bear arms not to be infringed, Amdt art. 2, sec. 1, p. 255.
to be secure in person and property from unreasonable seizures
and search, Amdt. art. 4, sec. 1, p. 256.
power of, as to amendments to Constitution, unlimited, p. 247.
right of, to petition for redress of grievances, p. 254.
Digitized by LaOOQ IC
S2SS XNDEX.
People— Conft'ftved.
rights not diapanigedl}7 ennmeratlon of powers in Constltation,
Amat. art. 9, sec. 1, p. 271.
powers not delegated nor prohibited are reserved to the. Amdt.
art. 10, sec. 1, p. 273.
■ all powers emanate from, p. 272.
Persons— Judicial power over, p. 219.
Personal rights— of security against unreasonable searches, seizures,
etc.. Amdt. art. 4, sec. 1, p. 256.
of parties accused of crime, Amdt. art. 5, sec. 1, p. 257.
rights as to property, Amdt. art. 5, sec. 1, p. 257.
construction or section, p. 258.
Jeopardy construed, p. 259.
party'not to be compelled to be witness against himself, p. 260.
depriving of life, liberty, etc., construed, p. 260.
due process of law construed, p. 2^.
right of eminent domain, p. 263.
compensation on condemnation, p. 265.
accused entitled to speedy trial, Amdt. art. 6, sec. 1, p. 167.
to be confronted by witness, Amdt. art. 6, sec. 1, p. 267.
to liave compulsory process, Amdt. art. 6, sec. 1, p. 267.
to have assistance of counsel, Amdt. art. 6. sec. 1, p. 267.
provisions of section applicable to Federal powers only, p. 267.
right of trial by Jury in civil actions, Amdt. art. 7, sec. I, p. 268.
excessive ball not to be required, Amdt. art. 8, sec. 1, p. 271.
provision construed, p. 271.
Petition for redress— right not to be abridged, Amdt. art 1, sec. 1,
par. 1, p. 254.
Pilots— power of Congress as to, p. 68.
concurrent power of States, pp. 73, 114.
Piracies— Congress may define and punish, art. 1, sec. 8, par. 10, p. 96.
definition of, wliat constitutes, p. 96.
slave trade not, under law of nations, p. 96.
what constitutes, p. 96.
Police— power of State cannot obstruct commerce and nayigation,
p. 67.
extent over trade and commerce, p. 72.
State power of, cannot be abandoned, p. 173.
power in general, pp. 72, 185.
Political power— not subject to Judicial interference, p. 44.
See CoNOBsss, Goyebnubnt.
Ports— preference not to be given by any regulation of commerce or
revenue, art. 1, sec. 9, par. 6, p. 114.
vessels clearing not to pay duties, art. 1, sec. 9, par. 6, p. 114.
Post-offices and post-roads— Congress shall establish, art. 1, sec. 8,
par. 7, p. 93.
• to establish , what comprehends, p. 93 .
means necessary to exercise of power enumerated, p. 93.
Postage rates— bill establishing not a revenue bill, p. 54.
Powers— existence of, how deduced, p. 66.
devolve on people of United States, p. 59.
not delegated, are reserved to people, Amdt. art. 10, sec. 1, p. 272.
construction for purpose of conferring, to be resorted to with
caution, p. 106.
Powers of Oongress— See Conobbss.
Powers of Government— construed, p. 43.
incidental, to carry into execution, art. 1, sec. 8, par. 18, p. 108.
Digitized by LaOOQ IC
INDEX. 323
Powers of Qc^eamment— Continued.
not delegated nor prohibited to the States, are reserved to th»
States or the people, Amdt. art. 10, sec. 1, p. 272.
ennmeration of, not to deny nor disparage others retained, Amdt.
art. 9, sec. l,p.Z71.
emanate from the people, p. 272.
See CONOBB88.
Powers of President—See E xkoutivjb , Pbxsidevt.
Powers of State— See State.
Preamble to Constitution, p. 41.
Preference— not to be given to one port over another, art. 1, sec. 9,
par. 6, p. 114.
Present— or emolument from foreign potentate, not to be accepted
by United States official, art. 1, sec. 9, par. 8, p. 115.
Presentment or indictment— necessary to put party on trial, Amrlt.
art. 5, sec. 1, p. 257.
except in cases in land and naval forces, and militia, Amdt. art.
0, sec. 1, p. 257.
President— Chief Justice to preside on impeachment of, art. 1, sec. 3,
par. 6, p. 48.
shall approve and sign all biUs, art. I, sec. 7, par. 2, p. 54.
approval of bills by, p. 55.
or return any bill with his objections, art 1, sec. 7, par. 2, p. 54.
if not returned within ten days to become a law, art. 1, sec. 7,
par. 2, p. 54.
proceedings of two Houses in case of a veto, art 1, sec. 7, par. 2,
p. 54.
orders, resolutions, or votes, when to be presented to, art. 1, sec.
7, par. 3, p. 55.
construction of clause, p. 06.
exclusive Judge of exigency for calling oat militia, p. 101.
how to exercise conmiaud of militia, p. 102.
cannot suspend writ of fuibecu eorput, but may be so authorized
by Congress, pp. 110, 194.
proceedings on return the same as on a bill, art. 1, sec. 7, par. 3,
p. 55.
executive power to be vested in, art. 2, sec. 1, par. 1, p. 194.
term of office four years, art 2, sec. 1, p. 1, p. 194.
executive powers coustrued, p. 194.
electors of, how appointed, art. 2, sec. 1, par. 2, p. 195.
where and bow to meet and vote, art. 2, sec. 1, par. 3, p. 196.
superseded, Amdt art. 12, sec. 1, p. 276.
time of choosins electors of, art. 2. sec. I, par. 4, p. 196.
eligibility for office of, art. 2, sec. 1 . par. 5, p. 196.
in case of removal, death, etc., Vice-Fresident to act as, art 2,
sec. 1, par. 6, p. 196.
when Congress may designate officer to act as, art. 2, sec. 1, par.
6, p. 196.
compensation not to be increased or diminished during term of
office, art. 2, sec. 1, par. 7, p. 197.
to talKO oath of office, art. 2, sec. 1, par. 8, p. 197.
commander-in-cbief of armv, navy, and militia, when called out,
art. 2, sec. 2, par. 1, p. 197.
may require opinion of principal officer of departments, art. 2,
sec. 2, par. l, p. 197.
may grant reprieves or pardons, except in cases of impeachment*
art. 2, sec. 2, par. 1 , p. 197.
power as commander-in-chief construed, p. 198.
authority over conquered territory, p. 199.
declaring martial law a war power of, p. 200,
pardoning power construed, p. 201.
Digitized by LaOOQ IC
INDEX*
i consent of Semite, art. 2, see. 2,
!Ct Of, p. 208.
b consent of Senate, art. 2, sec 2,
oral defined, p. 204.
In recess of Senate, art. 2, sec. 2,
(Then to expire, art. 2, sec. 2, par.
mend measures to Congress, art.
her House, art. 2, sec. 3, par. 1, p.
when may adjourn Congress, art. 2. sec. 8, par. 1, p. 206.
shall receive ambassadors and public ministers, art. 2, see. 8, par.
l,p.206.
sbaU take care that laws be faithfully executed, art 2,8ec, 3, par.
l,p.206.
clause construed, p. 207.
shaU commission all officers, art. 2, sec. 8, par. 1, p. 206.
shall be removed on conviction on impeachment, art. 2, sec. 4,
par. 1, p. 207.
President and Vice-President— manner of choosing, art 2,8ec. l,par.
2, p. 195.
who disqualified to be elector, art. 2, sec. l,par. 2, p. 199.
Coi^rress may determine time of choosibg electoxi, art 2, sec. 1,
par. 4, p. 196.
electors to meet and vote by ballot, Amdt. art. 12, sec. 1, p. 276.
one at least not to be an inhabitant of State, Amdt. art 12, sec 1,
p. 276.
electors to name in distinct ballots persons voted for, Amdt art
12, sec. 1, p. 276.
distinct list 01 votes to be made, Amdt art. 12, sec. 1, p. 276.
to be signed, certified, and transmitted to President of Senate,
Amdt. art. 12, sec. 1, p. 276.
duty of President of Senate on receipt of returns, Amdt. art 12,
sec. 1, p. 276.
person having greatest number of votes to be, Amdt art 12, sec.
l.p.276.
if he have a majority of electoral votes. Amdt. art 12. sec. 1, p. 276.
proceedings, if no person has a majority, Amdt art 12, sec. 1, p.
276.
in choosing President by the Legislature, each State to have one
vote, Amdt. art. 12, sec. 1, p. 276.
quorum for this purpose to be two-thirds of States, Amdt. art 12,
^ sec I, p. 276.
and a majority of States required to elect, Amdt art. 12, sec 1,
p. 276.
in case of no choice being made,Yice-Presldent to act Amdt art
12, sec 1, p. 276.
President of Etonate— Vice-President shall be, art 1, sec 3, par. 4, p.
48.
when Senate may choose pro tempore, art 1, sec. 3. par. 5, p. 48.
shall have no vote except on equal division, art 1, sec. 8, par. 4,
p. 48.
duty on return of votes of Presidential electors, Amdt art 12,
sec. 1, p. 276.
Press— freedom of, not to be abridged, Amdt art 1, sec. 1, p. 254.
Digitized by LaOOQ IC
nmfiX. 325
Pril^to pw pftfly— hot to be taken for public lue-wlthoixt compemn*
tion, Axndt. art. 5, sec. 1, p. 257.
PHvilege—of members of Congress from arrest, except, art. 1, sec. 6.
par. l,p.62.
members not to be questioned for speech or debate, art. 1, sec. 6r
par. 1, p. 52.
extent of privil^e, p. 63.
of writ otnabeas 6orpu8, construed, p. 110.
Mvileges and immunities— of vessels in ports of States to becom«-
mon and equal, p. 114.
of citizens of States, art. 4, sec. 2, par. 1, p. 233.
citizens construed, p. 233.
construction of term privileges and Immunities, p. 234.
State rights, extent of; p. 236.
soldiers not to be quartered without consent of owner, Amdf.-
art. 3, sec. I. p. 256.
persons not to be put twice in Jeopardy for same offense, Amdt.
art. 5, sec. 1, p. 257.
nor be deprived of property without due process of law, Amdt.
art. 5, sec. 1, p. 257.
prohibitions, construed, p. 258.
citizens of United States are citizens of State where they reside, -
Amdt. art. 14, sec. 1, p. 279.
not to be abridged by State laws, Amdt. art. 14, sec. 1, p. 279.
State not to deprive of life, etc., without due process of law,.
Amdt. art. 14, sec. 1, p. 279.
nor deny to any person equal protection of the laws, Amdt. art.^
14, sec. 1, p. 279.
section applies to citizens of United States, p. 279.
purpose of amendment, p. 279.
civil rights protected, p. 280.
protection of citizens, p. 282.
equal protection of the laws, construed, p. 283.
States cannot superadd requisites for alien to ocqufi^, p. 82'.
Frizes— Congress may make rules concerning, art. 1, sec. 8, par. 11, pV
Procedure-Congress may regulate, in Federal Courts, p. 85.
regulation by State not an impairment of vested rfehts, p. 157.
I^ocess oflaw-person not to be deprived of life, etc., without, Amdt.
art. 5, p. iait
provision made applicable to States, Amdt. art. 14, sec. 1, p. 279.
for obtaining witnesses, rights of accused. Amdt. art. 6, sec. 1, p.
Arofession—State may license the exercise of, pp. 76, 151.
Progress of science and art— Congress to have power to promote,
Ptoperty-partiesnot to be deprived of, without due process of law,
Amcit. art. 5, sec. 1, p. 257.
Srotection of right to, p. 257.
^eprivlng of, coostruea, p. 261.
due process of law, construed, p. 262.
right of eminent domain, p. 268.
compensation on condemnation, p. 265.
Amdt!wtf?4'52?l^^'*?^^^ of without due process of law,
protection of citizens, p. 282. '
citizens who are, p. 279.
dne proce^a of law. construed, p. 282,
equal protection of the laws as to, p. 288.
DE8TT Fed. Con.— »8.
Digitized by LaOOQ IC
826 IKDSX.
Property of TTnited States— Congrress may dispose of, and make roles
and reffalatlons for, art. 4. sec. 3, par. 2, p. 243.
terms in clause, construed, p. 243.
Frosecntions— accused to have speedy and public trial, Amdt. art. 6,
seel, p. 267.
to be tried by jury in State or district where crime was commit-
ted, Amdt. art. 6, sec. 1. p. 267.
to bo Informed of nature and cause of accusation, Amdt. art. 6,
sec. 1. p. 267.
to be confronted with witnesses, Amdt. art. 6, sec. I, p. 267.
to have compulsory process for witnesses, Amdt. art. 6, sec. 1, p.
267.
to have counsel for his defense, Amdt. art. 6, sec. 1, p. 287.
Protection— of interests of States devolves on Federal Government,
p. 193.
against invasion and from domestic violence, art. 4, sec. 4, par. 1,
i>.24.'i.
of life, liberty, and property of persons, Amdt. art. 5, sec. 1, p.
2o7.
construction of clause, pp. 258-266.
Public debt— of United States, payment not to be questioned, Amdt.
art. 14, sec. 4, p. 286.
Public grants— may exempt from taxation, p. 182.
implied reservation in, p. 173.
as contracts, p. 153.
Public lands— State may exempt purchaser of, from taxation, p. 152.
effect of exemption upon subsequent purchaser, p. 152.
Public ministers— power .of President to appoint, art. 2, sec. 2, par. 2,
p. 203. »»~ -»
extent of judicial power over, art. 3, sec. 2, par. 2, p. 223.
Public moneys -statements of, to be published, art. 1, sec. 9, par. 7, p.
Public ships— not subject to local jurisdiction, p. 100.
Public use— property not to be taken for, without just compensation,
Amdt. art. 6, sec. 1, p. 257.
Punishment— judgment on impeachment not to bar trial, etc., art. 1,
sec. 3, par. 7, v. 48.
cruel and unusual, prohibited, Amdt. art. 8, sec. I, p. 271.
for treason, Conjin^ess to declare, art. 3, sec. 3, par. 2, p. 229.
Congress may prescribe for offenses against commerce, p. 107.
for crimes on the high seas, p. s;6.
for military and naval offenses, p. 100.
for crimes and offenses impeding operation of Government, p.
108.
power of. Incidental to operation of sovereignty, p. 108.
statutes, when ex pott facto, p. 121.
increased for second offense— not expost/aetOtV*l^'
no distinction as to race or color, p. 286.
Qualification for office— no religious test shall be required as, art. 6,
sec. 1, par. 3, p. 251.
of electors and members of House of Bepresentative8,art. 1, tec.
2, par. I, p. 44.
construction, n. 4).
of members of House as to age and Inhabitancy, art l,sec2, par.
2, p. Hi.
of Senators as to ago and Inhabitancy, art. 1, sec. 3, par. 3, p. 47.
State cannot add to constitutional requirements, p. 47.
each House to judge of, art. 1, sec. 5, par. 1, p. 50.
Digitized by LaOOQ IC
nn>Ex. 327
Qnaliflcation for ofBcB-^CotttinueeL
of President of United States, art. 2, sec. 1, par. 5, p. 198.
as to age and residency, art. 2, sec. 1, par. 5, p. 196.
of Vice-President, Amdt. art. 12, sec. l, p. 27tf.
Quarantine— State may legislate as to, pp. 72. 185.
Quartering soldiers— in time of peace, Amdt. art. 8, sec. 1, p. 286.
In time of war, manner to l>e prescribed by Congress, Amdt. art,
3, sec. 1, p. 256.
Qnomni— a majority of each House constitutes, art. 1 , sec. 5, par. 1 , p. 50r
a less number may adjourn and compel attendance, art. 1, sec. b,
par. l.p.50.
in case of clioice of President, Amdt. art. 12, sec. 1, p. 276.
to elect Vice-President by Senate, Amdt. art. 12, sec. 1, p. 276.
majority of whole number necessary for choice, Amdt. art. 12,
sec. 1, p. 276.
Bailroada— extent of powers of State over, p. 74.
State may fix maximum rates of f relgnt, p. 74.
may authorize appointment of railroad commissioners, p. 170.
State may tax property of, p. 76.
subject to public supervision, p. 170.
State may regulate signals, p. l70.
statute may render liable for injury to person or property, p. 170.
Legislature may authorize municipal corporations to subscribe
for stock of, p. 180.
charter construed, p. 168.
charter a contract, p. 170.
law as part of contract, p. 170.
consolidated company, what law to govern, p. 170.
Immuiiity'from taxation in charter, p*. 172.
effect of exemption from taxation, p. 172.
reserved power to alter or amend charter, p. 177.
reserved power to repeal, p. 178.
Baihroad Oommissioners— Legislature may authorize appointment
of, p. 170.
Bace or color— rights of citizens not to be denied on account of,
Amdt. art. 15, sec. 1, p. 287.
Raise and support armies— power of Congress, p. 99.
Batification of amendments— what required, art. 5, sec. 1, par. 1, p.
of Constitution, number of States required, art. 7, sec. 1, par. l,p.
required, art. 7, sec. 1, par. 1, p. 252.
names of States, with dates, p. 252.
Batio of freight— State may fix maximum charges, p. 74.
Batio of representation— art. 1, sec. 2, par. 3, p. 45.
how apportioned among the several States, Amdt art. 14, sec. 3,
Lidlans not taxed exdnded from count, Amdt. art. 14, sec 2, p.
285.
when reduced, denial of right to vote, Amdt. art. 14, sec. 2, p.
285.
Bebellion— Congress may suspend statute of limitation during, p. 97.
power of Congress to suppress, p. 100.
power of Congress to fix conditions of returning peace, p. 101.
close of, judicial notice to be taken, p. 110.
privilege of writ of habeas corpus may bo suspended during, p. 110,
law affecting life or property for participating in. Is a bm of at.
talnder.p. 112.
State no right to secede, p. 116.
Digitized by LaOOQ IC
828 INDEX.
Btlbemon-^oniimied,
ordlnaace of secession nnll and Told. p. 116.
Constitutional objections not affected by, p. 116.
what legislation of rebel States is yalla, p. 116.
contracts in and of, void, p. 116.
,Aindt.art. 14,
sec. 3, p. 285.
Congress may remove disability, Amdt. art. 14, sec. 8, p. 285.
debts Incnired to suppress not to be questioned, Amdt. art. 14.
sec. 4, p. 286.
debts Inoorred In aid of, illegal and void, Amdt. art. 14, sec. 4, p.
286.
exception as to suspension of writ of habeas wrput, art. 1, sec. 9,
par. 2, p. 110.
contracts to pay on Confederate notes, void, p. 286.
Beceipts and ezpenditnrea— of public money to be pnblisbed, art. 1,
sec. 9, par. 7, p. 115.
Beoess of Senate— President may commission to fill vacancies In of-
fice, art. 2, sec. 2, par. 3, p. 206.
Beconsideration of bill returned by President— art. 1, sec. 7, par.
2,p. 54.
Bsoords— of State, full faith and credit to be given to, art. 4, sec. 1,
par. 1, p. 230.
Bedemption— right of, power of State, p. 149.
Redress of grievances— right to petition for, cannot be abridged,
Amdt. art. 1, sec. 1, p. 54.
Re-ezamination of causes— art. 7, sec. l,p. 268.
section, to what apply, p. 270.
Begnlations— f or election of Senators and Bepresentatives, art. 1, sec
• 4, par. 1, p. 254.
Belision— Congress can make no laws as to establishment of, Amdt.
art. 1, sec. 1, p. 254.
power over, left with States, Amdt. art. l,sec. 1, p. 254.
Beligions tosts-Hshall never be required as quallflcation for office,
art. 6, sec. 1, par. 8, p. 251.
Bsmedies— asnart of contract, cannot be impaired, p. 186.
change oil not necessarily illegal, p. 187.
what not Impairment of contract, pp. 139. 157.
statute of limitations and usury laws, p. 140.
exemption laws, when valid, p. 141.
stay laws, when invalid, p. 142.
what an impairment of, p. 156.
fitate may regulate right of appeal, p. 158.
Removal firom office— executive power of, p. 204.
on impeachment, art. 2, sec. i , par. 6, p. 204.
respecting territory ceded to united States, art. 4, sec 8, par. 3,
p. 243.
Bemoval of canses— Congress may provide for, p. 214.
Repeal— of charter, State power, p. 178.
Representation and direct taxation— how apportioned, art. h sec 3,
par. 8. p. 45.
changed by amendment, Amdt. art 14, sec 2, p. 385.
nntiiflrst enumeration, ratio of, art. 1, sec. 2, par. 8, p. 45.
State Executive to Issue writs of election to iul vacancies, art. 1.
sec. 2, par. 4, p. 46.
Digitized by LaOOQ IC
Bopresentation and direct tazation—Contfnired. _.^ ^
no State to be deprived of eqnali^ in Senate, wlCheiit <
art. 5, sec. 1, par. 1, p. 247.
among several States, according to population, Amdt art. M^see.
2, p. 285.
excluding Indians not taxed, Amdt. art. 14, sec. 2, p. 285,
iHtsls reduced on denial of rlglit to vote, Amdt. art. 14, see. S»pw
285.
Bepraaentattrea— House of, a branch of Congress, art. 1, see. I, p. 44.
qualifications of electors of members, art. 1, sec. 2, par. l»p. 45.
construction of section, p. 45.
,V.46.
may be expelled, causes for, p. 51.
effect of resignation, p. 46.
shall choose Speaker and other officers, art. 1, sec. 2, par. 5, p. 47.
shall have sole power of impeachment, art. 1, sec. 2, par. 5, p. 41«
State Executive to issue writs of election to fill vacancies, art. 1,
sec. 2, par. 4, p. 46.
Legislatures to prescribe times, places, and manner of electlone,
art. 1, sec. 4, par. 1, p. 48.
Congress may alter regulations, except as to places, art. 1, see. 4,
par. 1, p. 48.
eompensaaon of Senators to be ascertained by law, art. 1, sec. 6.
-tar. l,r ■"
par. 1, p. 62.
shul be privileged from arrest, except, art. 1, sec. 6, par. 1, p. 52.
shall not DC questioned for speech or debate, art. 1, sec. 6, par. 1,
shau be ineligible for office created during their term,
6, par. 2, p. 53.
who ineligible to ofllce of, art. 1, sec. 6, par. 2, p. 53.
hills for raising revenue to orii^te In House, art. 1,
be ineligible for office created during their term, art. 1, see.
^54. ^'^*
'* to ofllce of Fzesldential elector, art. 2, sec. 1, par. 2, p.
oath to be taHaen by, art. 6, sec. 1, par. 3, p. 251.
shall be bound by oath to support Constitution, art. 6, sec. 1, pw;
3. p. 251.
provisions relative to apportionment of, Amdt. art. 14, sec. l^p^
285.
when basis to be reduced, Amdt. art. 14, sec. 2, p. 285.
intent of section construed, p. 285.
disability from participation in rebellion, Amdt. art 14, see. S, p.
may be removed by- Congress, Amdt. art. 14, see. 8, p. 285.
BepxieTea— President may grant, except, art. 2, sec. 2, par. 1, pi, 19K
power construed, p. 201.
Beprlsal— Congress may grant letters of, art. 1, sec. 8, par. U, p. 91.
no State shall grant, art. 1, sec. 10, par. 1, p. 116.
Bepublican form of government— guaranteed to States, art. 4, see.
4, par. 1, p. 245.
Besenred power— of States and people, Amdt. art 10, see. 1, p. 272.
no right of secession, p. 273*
of States, construction of clause, p. 274.
Beaenred righta— enumeration of rights, not to denjr er dlspanige
others retained, Amdt art. 9, sec. 1, p. 271.
powers not delegated to United States nor pcckhtbttsd to States
are reserved, Amdt art 10, sec. l^p. 272.
powers emanate firom the people, p. 213:
Digitized by LaOOQ IC
830 muEX,
Beserved xighlta'-ConHnued.
no reserved rigbt of secession, p. 273.
rifrbt to alter, amend, or repeal, charter may be reserved, p. 175.
not affected by consolidation with foreign corporation, p. 176.
extent of power or rights reserved, p. 177.
Basignation of President— Yice-Fresident to act, art. 2, sec. 1, par. 6,
p. 196.
Congress may provide for case of, art. 2, sec. 1, par. 6, p. 196.
Resolution—concurrent, to be presented to President, art. 1, sec. 7,
par. 3, p. 55.
^ElBtrospective statates— when, and when not, invalid, p. 155.
Revenue— bills to originate In House, art. 1. sec. 7, par. 1, p. 54.
preference not to be given to ports, art. 1, sec. i), par. 6, p. 114.
Congress may use means to collect in its discretion, p. 1U8.
or means to protect collectors, p. 108.
Revenue stamp— not to be required on process in State courts, p. JS8.
Rhode Island— Representatives in first Congress, art. 1, sec. 2, par. 3,
p. 45.
Right of petition— not to be abridged, Amdt. art. 1, sec. 1, p. 254.
Right of redemption— legislative power over, p. 149.
Right to bear arms— not to be infringed, Amdt. art. 2, sec. 1, p. 255.
construction of section, p. 255.
Rights enumerated— not to deny or disparage other, retained, Amdt.
art. 9, sec. 1, p. 271.
not delegated to United States or prohibited to States are re-
served, Amdt. art. 10, sec. 1, p. 272.
Rights of citizens— protection of, Amdt. art. 5, sec. 1, pp. 257, 261.
State not to abridge, Amdt. art. 14, sec. 1, p. 279.
purpose of amendment, p. 280.
to vote, Amdt. art. 15, sec. 1, p. 287.
amendment construed, p. 287.
may be protected by Congress, Amdt. art. 15, sec. 2, pp. 287, 288.
Rights of property— in invention, p. 96.
Rights of people— not disparaged by enumeration of rights in Consti-
tution, Amdt. art. 9, sec. 1, p. 271.
Rights— growing out of statute, may be modified, p. 147.
-* -«,i^ — .. ..,«- ^« o4.„*3 Legislature, p. 149.
vested, cannot be divested, p. 155.
cannot be impaired by legislation, p. 156.
what not an impairmeut of, p. 157.
Roads— authority of Congress to establish, art. 1, ec. 8, par. 7, p. 98.
Robbery— on high seas is piracy, p. 96.
of mail, concurrent power to punish for, p. 98.
Rnles— of proceedings, each House may determine, art. 1, sec. 5, par.
2, p. 51.
and regulations respecting territory and property of United
States, art. 4. sec. 3, par. 2, p. 243.
of tho common law, trial by jury, Amdt. art. 7, sec. 1, p. 268.
re-ezamlnation of facts by, Amdt. art. 7, sec. 1. p. 268.
of property, decision of State Supreme Court binding on Federal
courts, p. 86.
of evidence, when statute not ex post facto, p. 121.
warrant, what necessary to obtain, p. 256.
Salaries— of ofllce may be reduced, p. 128.
Digitized by LaOOQ IC
INDEX. 331
SaTings-bankB—State law to regulate, p. 87.
Seazohea and aeiznrea-Hsecarity of people against, Amdt. art. 4, sec.
l,p. 256.
warrants, what essential to, Amdt. art. 4, sec. 1, p. 256.
coustractlon of clause, p. 256.
Science and art— Congress may promote progress of, art. 1, sec. 8, par.
8, p. M.
Seat of government— exclusive legislation of Congress over, art. 1,
sec. 8, par. 17, p. 102.
Secession and confederation— prohibited to States, p. 116.
not a reserved right, p. 273.
Secretary of War— no right to suspend privilege of writ of habeas
corpus^ p. 110.
Secret sessions— in discretion, p. 92.
Secnzities— punishment for counterfeiting, art. 1, sec. 8. par. 6, p. 92.
of Government, Congress may exempt from taxation, p. 6d.
of Confederacy invalid, p. 126.
Seizure— protection from, Amdt. art. 4, sec. 1 , p. 286.
warrants, what necessary to obtain, p. 256.
Senate and House of Representatives— components of Congress,
art. 1, sec. 1, p. 44.
Senate— composed of two Senators from each State, art, 1, sec. 3, par.
l,p. 47.
chosen by Legislatures for six years, art. 1, sec. 3, par. 1, p. 47.
construction of clause, p. 47.
vacancies, how created, p. 46.
executive cannot appoint, p. 47.
auallflcatlons for, art. 1, sec. 3, par. 3, p. 47.
ivlslon into classes, art. 1, sec. 3. par. 2, p. 47.
Vice-President to be President of, art. 1, sec. 3, par. 4, p. 48.
to choose officers and President pro tempore^ art. 1, sec 3, par. 5,
p. 48.
to have sole power to try impeachments, art. 1, sec. 8, par. 6, p. 48.
on such trial to be on oath or aifirmatlon. art. 1, sec. 3, par. 6, p. 48.
Chief Justice to preside on trial of President, art. 1, sec. 3, par. 6,
p. 48.
concurrence of two-thirds required for conviction, art. 1, sec. 3,
par. 6, p. 48.
Shan be Judge of returns and qualifications of its members, art.
1, sec. 5, par. 1, p. 50.
majority to constitute a quorum, art. 1, sec. 5, par. 1, p. 50.
smaller number may adjourn and compel attendance, art. 1, sec.
6,par. l,p. 50.
- "nine
may uetermfne rules of its proceedings, art. 1, sec. 5, par. 2, p. 61.
may punish or excel a member, art. 1, sec. 5, par. 2, p. 51.
to keep Journal of its proceedings, art. 1, sec. 5. par. 3, p. 52.
to publish the same, except, art. 1, sec. 5, par. 3, p. 52.
restriction on power to adjourn, art. 1. sec. 5, par. 4, p. 52.
may propose amendments to revenue bills, ait. 1, sec. 7, par. 1, p.
shall advise and consent to ratifications of treaties, art. 2, sec. 2,
oar. 2, p. 203.
shaii advise and consent to the appointment of ambassadors, etc.,
art. 2, sec, 2, par. 2, p. 203.
and Judges of Supreme Court and other officers, art. 2, sec. 2, par.
when may be convened by President, art. 2, sec. 3, par. 1 , p. 206.
no State without its consent to be deprived of its equal suffrage
in, art. 5, sec. 1, par. 1, p. 247.
Digitized by LaOOQ IC
Senjrton— to be divided into tbree classes, art. h see. 3, par. 2, p. 4ft,
seats of classes, wben vacated, art. 1, sec. 3, par. 2, p. 48.
qoallflcatioiis as to age and Inliabltancy, art. 1, sec. 3, par. 3, p.
time, place, and manner of cbooslng, bow fixed, art. 1, sec. 4, par.
l,p.48.
Ck>ngre88 may alter except as to places, art. 1, see. 4, par. 1, p. 48.
construction of clause, p. 48.
to be privileged from arrest, except, art. 1, sec. 6, par. 1, p. 52.
compensation to be ascertained by law, art. 1, sec. 6, par. 1, p. 52.
shair not be questioned for speech or ddbate, art. 1, sec. 6, par. 1,
p. 52.
ineligible to ofllces created during term of service, art. 1, sec 6»
par. 2, p. 58.
-who ineligible to office of, art. 1, sec. 6, par. 2, p. 53.
ineligible to office of presidential elector, art. 2, sec. 1, par. 2, p.
1»5.
sball be bound by oath to support the Constitntion, art. 6, see. 1,
par. 3, p. 251.
certain persons dlsquallfled, Amdt. art. 14, sec. 3, p. 285.
Congress may remove disability, Amdt. art. 14, sec. 3, p. 28ft.
Senators and BepreaentatlTea-compensation of, art. 1, see. 6, par. 1,
p. 52.
privilege from arrest, art. 1. sec. 6, par. 1, p. 52.
construction of clause, p. 52.
disqualified from holding other offices, art. I, sec. 6, par. 2, p. 5S.
incompatible offices, p. 52.
Service or laboi^-delivery up of fugitives from, art. 4, sec. 2, par. 3, p.
241.
Servitnde— involuntary, except for crime, abolished, Amdt. art. 13,
sec. 1, p. 277.
rights of citizens not to be abridged on account of prior conditlaa
of, Amdt. art. 15, sec. 1, p. 287.
Shipping— Congress, power to establish rules for, p. 68.
State may impose license tax. p. 7ft.
Ships of war— States shall not keep, art. 1, sec. 10, par. 3, p. lOOi.
Slare— claim for loss or emancipation of, void, Amdt. art. 14, sac. 4,
p. 286.
Slare trade— not piracy under law of nations, p. 96.
Slarery— abolished, Amdt. art. 13, sec. 1, p. 277.
section construed, p. 277.
power of Congress to enforce provision, Amdt. art. 13, see. 1, p.
278.
Seldien— not to be quartered in any house without eonaent of owner,
Amdt. art. 3, sec. i, p. 256.
payment of bounties not to be questioned, Amdt. art. 14, see. 4,
p. 288.
SoBlh Oarolina— Aepresentatives in first Congress, art. 1, sec. S, par. 3,
p. 45.
Sorereignty— power of punishment incident to, p. 106.
See GoyxsKXENT, Statb.
Speaker— House to clioose Speaker and other dlloers, art. I, see. 2,
par. 5, p. 47.
Speech— Congress not to abridge freedom of, Amdt. art. I, see. I, p. 254.
Standard of weighta and niMunirtv-GongtMi shall fix, art. 1, aec. 8*
par. 5k p. »L
Digitized by LaOOQ IC
States— ezeentlres sludl Issae writs of election to fin Taeancies In
House, art. 1, sec. 2. par. 4, p. 46.
may regulate elective franchise, p. 49.
onot tax means and instruments of (
cannot tax means and instruments of Government, p. 59.
cannot tax Government securities, p. 63.
may tax estates composed of Government secnritles, p. 6S.
commerce among, to be regulated by Congress, art 1, sec. 8, par. 8,
p. 6ft.
cannot lay tax on freight, p. 65.
cannot obstruct navigation, p. 67.
concurrent power over commerce, p. 70.
power when exclusive in Congress, p. 70.
no power beyond right of self-defense, p. 71.
may regulate sale of dangerous commodities, pp. 72, 96.
may regulate or prohibit sale of liquors, pp. 77, 151.
State authority as to naturalization, p. 82.
may punish for uttering counterfeit coin, p. 92.
or for cheating by base coin, p. 92.
or for keeping counterfeit implements, p. 92.
cannot punl&n frauds under color of right from United States,
power over mlUtla construed, p. 99.
may punish for neglect to obey orders, p. 101.
concurrent power to call out militia, pp. 101, 102.
authority to officer and train militia, p. 102.
authority over owners, p. 109.
authority over corporations, p. 118.
no power to taxpassengers, p. 71.
police powers or State supreme, p. 72.
power over internal commerce, p. 73.
authorities over fisheries, p. 75.
license taxes, pp. 76, 77.
State insolvent laws, validity of, p. 86.
when superseded, p. 87.
Territorial limit of authority, p. 88.
validity of insolvent discharge, p. 90.
reserved power as to militia, art. 1, sec. 8, par. 16, p. 102.
construction of clause, p. 102.
authority over land ceded to Gtovemment. p. 105.
ports <tf, not to have preference over other State ports, art. 1,
sec. 9, par. 6,jp. 114.
no right to secede, p. 116.
shall not enter into treaties, alliance, or confederation, art. I, sec.
10, par. 1, p. 116.
shall not grant letters of marque or reprisal, art. 1, sec. 10, p^r. 1,
p. 116.
shall not coin money, art. 1, sec. 10, par. 1, p. 116.
shall not emit bills of credit, art. 1, sec. 10, par. 1, p. 116.
biUs of credit construed, p. 118.
restriction as to making a legal tender, art. 1, sec. 10, par. 1, p. 116.
construction, p. 120.
shall not pass bills of attainder, art. 1, sec. 10, par. 1, p. 116.
biU of attainder, what Is, p. 120.
ox ex pott facto law, art. 1, sec. 10, par. 1, p. 116.
tx pott/acto laws construed, p. 121.
what not, p. 123.
or law Impairing obligation of contracts, art. 1, see. 10, par. 1, p.
what legislation Inhibited to States, n. 124.
Inhibition to apply to States, and not to Congress, p. 125.
laws merely retrospective not inhibited, p. 120.
inhibition construed, p. 127.
may contract with individuals, pp. 128, 129.
Digitized by LaOOQ IC
331
par. 3, p* 190.
r. 1, p. 116.
ration, p. 180*
p. 168.
ingress, art. 1,
art. 1, sec. 10»
c. 10, par. 2, p.
.190.
art. I, sec. 10,
Digitized by LaOOQ IC
INDEX. 333
States— Continued.
not to enter Into agreement or compact -with other State, art. 1,
sec. 10, par. 3, p. 190.
agreements or compacts, wbat are, p. 193.
not to eiunge In war miless actually invaded, art. 1, sec. 10, par.
Jurisdiction of State courts coextensive with its Territory, ex-
cept, etc., p. 213.
removal of causes from, p. 214.
faith and credit given to State official acts, etc., art. 4, sec. 1, par.
1, p. 230.
effect of judgments of State courts, p. 231.
privileges and immunities of citizens secured, art. 4, sec. 2, par.
l,p.233.
dtlzens, who are, p.tiSS.
grivileges and immunities construed, p. 234.
tate rights as to citizens, p. 236.
rights on admission of new State, art. 4, sec. 3, par. 1, p. 242.
Territorial property, claim to not prejudiced, art. 4, sec. 3, par. 2,
p. 243.
republican form of government guaranteed to, art. 4, sec. 4, par.
entitled to protection from invasion, art. 4, sec. 4, par. 1, p. 245.
clause construed, p. 245.
oath of office of State officers, p. 241.
right to maintain miUtla, Amdc. art. 2, sec. 1, p. 255.
powers not delegated are reserved, Amdt. art. 10, sec. 1, p. 272.
State rights construed, p. 272.
secession not a reserved right, p. 273.
what powers are reserved, p. 274.
Sersoual rights protected, Amdt. art. 5, sec. 1. p. 257.
tates nottoabriageprlvileges and immunities of citizens, Amdt.
art. 14, seel, p. 2f9.
purpose of amendment, p. 280.
camiot deny or abridge the right of citizens to vote, Amdt. art.
15, sec. 1 , p. 247.
amendment construed, p. 287.
cannot without its consent be deprived of its equal suffrage in
Senate, Aiiidt. art. 5, sec. 1, p. 247.
three-fourths of State may ratify amendments, Amdt. art. 5, sec.
l,p.247.
State bonds— may be taxed, p. 150.
State officers— oath to be taken by, art. 6, sec. 1, par. 3, p. 251.
State records— manner of authentication of, art. 4, sec. 1, par. 1, p. 230.
effect of Judgineut of State courts, p. 231.
power of Congress construed, p. 2J2.
State rights— acts and official record to have full faith and credit, art.
4, sec. l,par. l,p. 230.
Congress to prescribe manner of authentication and effect of,
art. 4, sec. 1, par. 1, p. 2^0.
power of Coiiffress construed, p. 232.
privileges ami Immunities of State citizens, art. 4, sec. 2, p. 233.
construction of clause, p. 236.
republican form of government guaranteed, art. 4, sec. 4, par. 1,
p. 245.
right to protection by General Qovemment, art. 4, sec. 4, par. 1,
p. 245.
Congress to decide form of government, p. 246.
powers not delegated nor proliibited, are reserved to the States,
Amdt. art. 10, sec. 1, p. 272.
secession not a reserved right, p. 273.
Digitized by LaOOQ IC
836 tNDfiX.
Statement— of reeeiDtsand ezpendltares to be t>iibll8lied» art. 1, sec. 9,
par. 7, p. llo.
Statnte of Limitations— Gonfrress may suspend daring rebellion, p. 97.
yalidiiT of, as to obligation of contracts, p. 140.
Stockholders— State may control liability of, p. 161.
Subject of bankruptcies— what includes, p. 83.
Succession tax— Congress may impose, p. 58.
Sufltage— right not conferred by Fifteenth Amendment, p. 287.
mere citizenship does not confer, p. 287.
Summary process— State may control corporations by, p. 161.
Supreme Court— judicial power vested in, art. 8, sec. 1, par. I, p. 20S.
ludicial powers construed, p. 209.
lurisdicuon of, p. 210.
to wbat cases to apply, art. 3, sec. 2, par. 1, p. 2U.
extent of, construed, p. 215.
jurisdiction over, what subjects, p. 217.
as to persons, p. 219.
original and appellate jurisdiction of, art. 3, sec. 2, par. 2, p. 22S.
clause constnied, p. 223.
appellate jiirlsdictlon of, p. 225.
See Judicial Powbb.
Supreme law— Constitution, laws, and treaties to be, art. 6, sec. 1, par.
2, p. 248.
judges In every State bound by, art. 6, sec. 1, par. 2, p. 248.
Constitution as, p. 248.
treaty as, p. 249.
Suppression of insurrection— Congress to provide for, art. I, sec 8,
par. 15, p. 100.
debt incurred for, not to be questioned, Amdt. art. 14, sec 4, p.
286.
Suspension— of writ of Jiabeas corpus, effect of, p. 110.
Taxation- blUs for, to originate ]n House, p. 54.
g»wer of Congress, art. 1, sec. 8, par. 1, p. 56.
xation construed, p. 58.
Sower concurrent in National and State government, p. 69.
tate power of, pp. 50, 76.
a means and instrument of government, p. 59.
State may provide for payment of. In gold and silver, p. 60.
what State can and cannot tax, pp. 50, 60.
power of Congress to exempt from, p. 63.
exemption of securities from, p. 63.
by State, on exercise of police powers, p. 76.
by State, when not Impairment of contract, p. 150.
State licenses, effert of, on. p. 151.
State may waive rli;ht of, p. 151.
State may exempt from, pp. 164, 165.
State prohibited from laying imposts or duties, except, art. 1, aeo.
10, par. 2, p. 187. _
Congress may exempt from taxation by State, p. 107.
on commercial products, validity of, p. 180.
State not to lay tonnage duty on vessels, art. 1, sec. 10, par. 3.
tonnage duty, construction of, p. 190.
prohibition construed, p. 192.
Taxes- how apportioned amonior the States, art. 1, sec. 2, par. 3, p. 4S.
on passenger, when invalid, p. 71.
capitation or direct, to be In proportion to census, art. 1, sec 9^
par. 4, p. 113.
capitation tax defined, p. 113.
Digitized by LaOOQ IC
83r
Caugnaa sball Ii»Te p<mer to levy and e611eet, art. 1, see. 8, par.
to be' uniform thronfflioat the United States, art 1, sec. 8, nar. U
p. S6.
direct taxes, when and how levied, art. 1, sec. 9, par. 4, p. 118.
direct tax, what is, p. 113.
on exports from State prohibited, art. 1, sec. 9, par. 8, p. 114*
exception as to insurrectionary States, p. 114.
levied on contingency, p. 166.
Telegraph companies —State may tax, p. 76.
Congress may authorize operation of, p. 98.
State cannot interfere with grant to, p. 98.
Tender in payment— restriction on power of State* art. l,sec. 10, par.
incidental power of United States Govenmient, p. 82.
Tenure of office— of United States Judges, art 3, sec. 1, par. 1, p. 206.
Congress cannot limit, p. 215.
Term of office— of President and Yice-President, art. 2, sec. 1, par. I,
of Representatives, art. 1, sec. 2, par. 2, p. 45.
of Senators, art. 1, sec. 3, par. 1, p. 47.
of United States judges, art. 8, sec 1, par. 1, p. 208.
Territorial courts— Congress may define Jurisdiction of, p. 212.
Territorial goTemment— powers of Congress, p. 245.
Territory— not entitled to Bepresentative till admitted, p. 49.
acquired by conquest, authority of Executive over, p. 190.
Coiu^ss to dlBpose of and to make rules to regulate, art. 4,.sec.
construction of section, p. 248.
title to soU under tide waters, p. 75.
Cherokee, construed, p. 81.
Test— religious, not required as qnallflcation for office, art. 6. sec. 1.
par. 8, p. 251.
Test oath— constitutioual provision for a blU of attainder, p. 111.
Testimony— necessary to conviction for treason, art. 8, sec. 8. par. 1.
p. 228. ,,*««,
Time— fraction of a day, when noted, p. 55.
Timesy places, and manner— of elections to Congress, art. 1, sec. 4,
par. l,p. 48.
Congress may alter regulations, except, art. 1, see. 4, par. I, p. 48,
Title of nobility— United States shaU not grant, art. 1, sec, 9, par. 8, p.
115.
no State shall grant, art. I, sec. 10, par. 1, p. 116.
United States official not to accept, from king, etc., art 1, sec. 9.
par. 8, p. 115.
Toll— mail contractor must pay, p. 93.
Tolls and freights— authority of Legislature, p. 170.
Tonnage— restriction on State as to duty of, art. Usee. 10, par. 8, p
definition of, pp. 190, 191.
a tax on commerce, p. 192.
Tirade-marks— copyrights not to apply to, p. 94.
T^anqnilllty— purpose of Constitution to insure. Preamble, p. 41.
Transfer of reoords— power of Congress to provide for, p. 106.
BxBTY Fed. Con.— •••
Digitized by LaOOQ IC
338 INDEX.
^rangportation—aii element of commerce, p. 65.
State may reffnlate speed of steamers and raOroads, p. 72.
power of State over chartered companies, p. 74.
Tireason— In what consists, art. 3, sec. 3, par. 1, p. 228.
elements of, p. 228.
testimony necessary to convict of« art. 3, sec. 3, par. 1, p. 228.
definition of offense, p. 228.
clause construed, p. 228.
Congresd to declare punishment for, art. 3, sec. 3, par. 2, p. 229.
power exclusive In Oonsrress, p. 229.
attainder of, not to work corruption of blood, art. 3, sec. 3, T>ar.
2 D . 229
shall'not work forfeiture, except during life, art. 3, sec. 3, par. 2,
removal from office on conviction of, art. 2, sec. 4, par. 1, p. 206.
privilege from arrest not to extend to cases of , art. 1, sec. 6, par. 1.
Treasnry— money drawn from, only in consequence of appropriation,
art. 1, sec. 9, par. 7, p. 115.
accounts of receipts and expenditures to he published, art 1, sec.
^-'ess may issue, p. 61.
may make legal tender, pp. 62, 108.
State cannot tax, p. 63.
Treaties— President, with concurrence of Senate, may maker art. 2,
sec. 2, par. 2, p. 203.
treaty construed, p. 203.
Judicial power to extend to cases under, art. 3, sec 2, par. 1, p. 223.
to be supreme law, binding on all judges, art. 6, sec f, par. 2, pp.
State prohibited from making, art. 1, sec. 10, par. 1, p. 116.
Treaty— no State shall enter Into, art. 1, sec. 10, par. 1, p. 116.
Trial— and Judgment after conviction, on imi>eachment, art. I,8ec3,
par. 7, p. 48.
T^rial by j nry— of aU^crimes except cases of impeachment, art. 3, sec 2,
committed, art. 3, sec. 2, par.
te, to be where Congress di-
kmdt. art. 6, sec. 1, p. 267.
urt. 7, seel, p. 268.
Ttibnnals— inferior to Supreme Court, Congress mar^stabllsh, art 1,
sec. 8, par. 9, p. 96.
Troops— State shall not keep In time of peace, art 1, sec. 10, par. 3, p.
Turnpikes— grant of franchise construed, p. 168.
State may charter, p. 74.
power of Legislature over franchise, p. 169.
Two-thirds— of Senate to concur In conviction on impeachment, art
1, sec. 3, par. 6, p. 48.
of each House may expel a member, art. 1, sec. fi. par. 2, p. 51.
may pass a bill over President's veto, art. 1, sec. 7, par. 2. p. 54.
concurrence required to make treaty, art. 2, sec. 2. par. 2, p. 203.
of States, for call of convention to propose amendments, art 5,
sec 1, p. 247.
Digitized by LaOOQ IC
TwO'itdrda^ConHnued.
oi both lloa^es may propose amendments, art 5, sec. 1, p. 247.
of States represented, required for choice of President by HoosOf
Amdt art. 12, sec. 1, p. 276.
of Senators, required for election of Vice-President, Amdt. art.
12,8ec. 1, p.27(iw
of Couiarress, may remove disability to office, Amdt. art. 14, sec.
3, p. 2d5.
Uniform— defined, p. 98.
TJniformity— required in bankrupt law. p. 84.
Union— purpose of Constitution to establish more perfect^Preamble,
p. 4i.
perpetual and indissoluble, p. IIS.
States were never out of, p. 136.
state of, to be given to Congress by President, art. 2, sec. S, par.
l,p.2«>.
new States may be admitted into, art. 4, sec. 3, par. 1, p. 242.
restriction as to formation of new States, art. 4, sec 3, par. 1, p.
Congress as Legislature of, p. 103.
United States—people of, defined, p. 4L
power of Government of, p. 43.
who are citizens of, Amdt. art. 14, sec 1, p. 279.
See GOVB&NMKNT.
United States bonds— exemption from State taxation, p. 63.
United States courts— power of Congress to institute, art. 1, sec. 8,
par. i), p. 06.
bound by i-ule of property of State Supreme Court, p. 98.
Jurisdiction of, art. a, sec. 2, par. 1, p. 215.
extent of Jurisdiction, p. 215.
constructfou of clause, p. 217.
Jurisdiction as to person, p. 219.
admiralty and maritime, p. 221.
powers over maritime contracts, p. 223.
United States marshal— cannot be commercial agent of foreign na-
tlou, p. 115. ^
Unreasonable searches and seizures— prohibited, Amdt. art 4, sec.
1. p, 256.
Unnaoal punishments— not to be inflicted, Amdt. art. 8, p. 271.
Useful arts— Congress to promote progress of, art. 1, sec. 8, par. 8,
p. 94.
Uanry laws— validity of, p. 140.
Vacancy— in representation, EzecutlTe to issue writs of election to
fill. art. 1 , sec. 2, par. 4, p. 46.
how created, p. 46.
in Senate, how filled, art. 1, sec. 3, par. 2, p. 47.
during recess of Senate, to be filled by conmiission, art. 2, sec. 2,
par. 3,_p. 206.
power of President to fill, p. 206.
by Executive appointed, effect of, p. 49.
created by acceptance of incompatible office, p. 53.
Validity of public -ebt-not to be questioned, Amdt. art 14, sec. 4, p.
266.
Vefwels— frrm port of one S^ate,notto be obliged to pay duties in
another, art. 1, sec. 9, par. a, p. 114.
Sower of Congress to makj regulations for, p. 68.
tote may regulate positions in harbors, etc., p. 72.
Congress may provide punishment for conspiracy to bum, p. 96.
Digitized by LaOOQ IC
340 INDEX.
ypiiioli Continued
of war, not subject to localjurlsdletioii, p. loa
of war. Congress may bulla; p. 100.
State may make inspection laws, p. 114.
privilMres and immunities of. p. 114.
not obl]«ea to enter or clear in Interstate conmieTee, p. 114.
Vested rights— Constitution does not deprive Congress of power to
infringe, p. 84.
cannot be divested by State legislation, p. 105.
under landgrants, p. 153.
under grants from State, generally^ p. 155.
what not impairment of, p. 157.
Veto— of bill by President, proceedings of Congress on, art. 1, sec. 7,
par. 2, p. 54.
Vice-President— to be President of Senate, art. 1, sec. 3, par. 4, p. 48.
to have no vote except on equal division, art. 1, sec. 8, pur. 4, p. 48.
-Senate may choose President pro tempore, art 1, sec 3, par. 5»
p. 48.
to be chosen for four years, art 2, sec. 1, par. 1, p. 194.
number of electors, and manner of appointing, art. 2, sec. 1, par.
2, p. 195.
duties of President, when to devolve on, art 2, sec. 1, par. 8, p.
196.
Congress may provide by law for appointment of, in certain cases,
art. 2, sec. 1, par. 6, p. 196.
art. 2, sec. 1, par. 6, p. 196.
removal from office by impeachment, art. 2, sec. 4, p. 207.
manner of choosing, by electors, Amdt. art. 12, seel, p. 277.
to be named by electors in distinct ballots, Amdt. art 12, sec. 1,
distinct lists to be signed, certified, and sent to President of Sen-
ate, Amdt. art. 12, sec. 1, p. 277.
count of votes by President of Senate, Amdt. art. 12, sec. l.p.277.
person having greatest number of votes to be, Amdt. art 12, see
if no'person have majority. Senate to choose, Amdt. art. 12, sec.
l,p.277.
Quorum for such purpose to be two-thirds, Amdt. art. 12, sec. 1,
p. 277.
majority of whole number necessary to a choice, Amdt art 12,
sec. 1, p. 277.
when to act as President, Amdt. art. 12, sec. 1, p. 277.
eligibility to office of, Amdt. art 12, sec. 1. p. 277.
Violation of obligation— of contract, what is not, pp. 184, 13S.
See ObliqatiOn of Coittbaot.
Virginia— representation in first Congress, art I, sec. 2, par. 3, p. 45.
Volunteers— State may give bounty to, p. 99.
Vote— each Senator shall have one, art. 1, sec. 3, par. 1, p. 47.
Vice-President not to have, except on equad divlBlon, art. 1, see.
8. par. 4, p. 48.
requiring concurrence of two Houses to be presented to Presi-
dent, art. 1, sec. 7, par. 3, p. 55.
fht to, not to be abridged by reason of race, color, etc., Amdt
right to, not to be abridged 1
art. 15, sec. 1, p. 287.
each House may expel a member by two-thirds, art. 1, sec. 5, par.
2, p. 51.
bill vetoed may be passed by a two-thirds, art. 1, sec. 7, par. 2,
p. 54.
of two-thirds requHed for conviction on impeachment, art. 1«
. sec. 3. par. 6, p. 48.
two-thirds of Congress necessary to propose amendments, art 5»
sec. 1, par. 1. p. 247.
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INDEX. 341
Yote~'ConHnued,
consent of two-thlrfls Senate necessaiT tomake treaty, art. 2, see.
2, par. 2, p. 203.
two-tnirds necessary to remove disability for office, Amdt. art.
14, sec. 3, p. 285.
effect of denying right to, on apportionment of representation,
Amdt. art. 14, sec. 2, p. 286.
Intent of amendment, p. !285.
for President and Vice-President, how taken, Amdt. art. 12, sec.
I, p. 276.
right of citizens, cannot be abridged, Amdt. art. 15, sec. 1, p. 287.
amendment construed, p. 287.
War— defined, p. 97.
power of Congress to declare, art. 1, sec 8, par. 11, p. 97.
power exclusive, p. 97.
power to make roles and articles of, art. 1, sec. 8, par. 14, p. 100.
no State, without consent of Congress, to engage in, art. 1, sec.
10, par. 8, p. 190.
treason consists in levying, art. 3, sec. 3, par. 1, p. 228.
quartering soldiers in time of, to be regulated by Congress, Amdt
art. 3, sec. 1, p. 256.
Warehonses— State may regulate storage, etc., p. 73.
War of races— subject to powers of Government, p. 286.
Warrants— to issue only on probable cause, Amdt. art. 4, sec, 1, p. 256.
on oath or adftrmatlon, Amdt. art. 4, sec. 1, p. 256.
Washington— Congress to provide for repair of streets, p. 103.
Bee Seat of QovEBNMSirT.
Weights and measures— Congress to fix standard of, art. 1, sec. 8, par.
V 5, p. 91.
power exclusive, when exercised, p. 91.
Welfare— purpose of Congress to secxure, Preamble, p. 42.
Con^ss shall have power to provide for, art. 1, sec. 8, par. 1, p.
Witnesses— no person to be compelled to testify against himself,
Amdt. art. 5, sec. 1. p. 257.
amendment construed, p. 260.
accused to be confronted by, Amdt. art. 6, sec. 1, p. 267.
accused to have compulsory process for, Amdt. art. 6, sec. 1, p. 267.
testimony necessary for conviction for treason, art. 3, sec. 3, par.
Writs— of election to fill vacancies in representation, art. 1, sec. 2, par.
4, p. 46. , , ,K~
Written opinion— of heads of departments, President may require
art. 2, sec. 2, par. 1, p. 197.
Yeas and naja—tA desire of one«fifth, to be entered on journals, art
1, sec. 5, par. 3, p. 53.
passage over veto to be determined by, art. 1, sec. 7, par. 2, p. 54
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